Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual restriction of any kind on the ability of any Restricted Subsidiary to: (1) pay dividends or make any other distributions on any Equity Interests of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (2) make loans or advances to the Company or any other Restricted Subsidiary, or (3) transfer any of its property or assets to the Company or any other Restricted Subsidiary. (b) The provisions of Section 4.09(a) do not apply to any encumbrances or restrictions: (1) existing on the Issue Date in this Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced; (2) existing in the Credit Facilities; (3) existing under or by reason of applicable law or governmental regulation; (4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced; (5) of the type described in clause (a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created), (ii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary subject to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type); (6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or (7) set forth in this Indenture, the Guarantees or any Collateral Document.
Appears in 3 contracts
Samples: Indenture (Foster Wheeler LTD), Indenture (Foster Wheeler Inc), Indenture (Foster Wheeler Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual 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 any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,;
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3) make loans or advances to the Company or any other Restricted Subsidiary, ; or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Closing Date, and any amendments, modifications, extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided provided, however, that the encumbrances and restrictions in the extensionany such amendments, renewalmodifications, replacement extensions, refinancings, renewals or refinancingreplacements, taken as a whole, are not materially less favorable to the Noteholders more restrictive (as determined in the reasonable judgment of by the Company) than the those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulationrequired by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
(43) existing (A) with respect to any Person, Person or to the property or assets of any Person, at the time the such Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or (B) with respect to any Unrestricted Subsidiary existing at the time it is designated of such acquisition and not incurred in contemplation thereof, which encumbrances or is deemed restrictions are not applicable to become a Restricted Subsidiaryany Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, andand any amendments, in each casemodifications, any extensions, renewalsrefinancings, renewals or replacements of such encumbrances or refinancings of any of the foregoingrestrictions; provided, provided however, that the encumbrances and restrictions in the extensionany such amendments, renewalmodifications, replacement extensions, renewals or refinancing arereplacements, taken as a whole, no less favorable in any material respect to the Noteholders are not materially more restrictive (as determined in the reasonable judgment of by the Company) than the those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(54) in the case of clause (4) of the type described in clause Section 4.05(a):
(a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset;
(B) existing by virtue of any transfer of, agreement to a lease transfer, option or license (but only to right with respect to, or Lien on any of the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created), (ii) that restrict the transfer of property or assets of the Company or any a Restricted Subsidiary subject not otherwise prohibited by this Indenture; or
(C) arising or agreed to a Lien permitted under this Indenture (but only in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the extent that such restriction is imposed by aggregate, reduce the instruments pursuant to which such Lien, or value of the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any a Restricted Subsidiary that is subject in any manner material to the Company or such Restricted Subsidiary;
(5) with respect to a merger agreementRestricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, stock or asset purchase agreement or similar agreementproperty and assets of, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)Restricted Subsidiary;
(6) contained in the terms governing of any Debt Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(other than Trade ObligationsA) otherwise permitted under this Indenture, if the encumbrance or restriction either:
(as determined i) applies only in the reasonable judgment event of the Company) the encumbrances a payment default or restrictions are necessary non-compliance with respect to a financial covenant contained in such Indebtedness or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that typeagreement; or
(ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes;
(7) set forth arising from customary provisions in joint venture agreements and other agreements entered into in the ordinary course of business;
(8) pursuant to the Notes and the Subsidiary Guarantees and any Exchange Notes and Subsidiary Guarantees exchanged therefor or for Additional Notes and the related Subsidiary Guarantees to be issued pursuant to this Indenture and the Registration Rights Agreement;
(9) imposed on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(10) imposed in connection with purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature specified in clause (4) above on the property so acquired;
(11) contained in the terms of any Indebtedness of any Restricted Subsidiary that is Incurred as permitted pursuant to Section 4.03;
(12) imposed in connection with any Investment not prohibited by Section 4.04 and or in connection with any Permitted Investment;
(13) contained in the terms of any Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.08 that limit the right of the debtor to dispose of the assets securing such Secured Indebtedness; or
(14) applicable to a Receivables Subsidiary and effected in connection with a Qualified Receivables Financing; provided, however, that such restriction or encumbrance applies only to such Receivables Subsidiary.
(c) Nothing contained in this Indenture, Section 4.05 shall prevent the Guarantees Company or any Collateral DocumentRestricted Subsidiary from:
(1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted under Section 4.08; or
(2) restricting the sale or other disposition of the Company’s property or assets or the property or assets of any of its Restricted Subsidiaries that secure the Company’s Indebtedness or the Indebtedness of any of its Restricted Subsidiaries.
Appears in 3 contracts
Samples: Indenture (PAETEC Holding Corp.), Indenture (PAETEC Holding Corp.), Indenture (PAETEC Holding Corp.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit 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 any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,;
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3) make loans or advances to the Company or any other Restricted Subsidiary, ; or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a4.05(a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided provided, however, that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, taken as a whole, replacements are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulationrequired by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
(43) existing (A) with respect to any Person, Person or to the property or assets of any Person, at the time the such Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or (B) with respect to any Unrestricted Subsidiary existing at the time it is designated of such acquisition and not incurred in contemplation thereof, which encumbrances or is deemed restrictions are not applicable to become a Restricted Subsidiaryany Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and, in each case, and any extensions, renewalsrenewals or replacements of such encumbrances or restrictions; provided, replacements or refinancings of any of the foregoinghowever, provided that the encumbrances and restrictions in the extensionany such extensions, renewal, replacement renewals or refinancing are, taken as a whole, replacements are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced renewed or refinancedreplaced;
(54) in the case of clause (4) of the type described in clause Section 4.05(a):
(a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset;
(B) existing by virtue of any transfer of, agreement to a lease transfer, option or license right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
(but only C) arising or agreed to in the extent ordinary course of business, not relating to any Indebtedness, and that such restriction is imposed by do not, individually or in the instruments pursuant to which such lease or license is created)aggregate, (ii) that restrict reduce the transfer value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(5) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(but only to 6) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such Lien, Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the obligation secured thereby, is created) event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (iiiii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that restrict any such encumbrance or restriction would not be expected to materially impair the transfer Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 3 contracts
Samples: Indenture (Tw Telecom Inc.), Indenture (Tw Telecom Inc.), Indenture (Tw Telecom Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(bparagraph (b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit 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 on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary,
(3) make loans or advances to the Company or any other Restricted Subsidiary, Subsidiary or
(34) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(aparagraph (a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on in the Issue Date in this Notes, the Subsidiary Guarantees, the Indenture, the GuaranteesSecurity Documents, or under any Permitted Priority Secured Indebtedness of the Collateral Documents Company or any other agreements in effect on the Issue DateSubsidiary Guarantor or Permitted Priority Subsidiary Guarantee of any Subsidiary Guarantor, and any extensions, refinancings, renewals, supplements, amendments or replacements or refinancings of any of the foregoingforegoing agreements; provided that the encumbrances and restrictions in the any such extension, refinancing, renewal, replacement supplement, amendment or refinancingreplacement, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed, replaced supplemented, amended or refinancedreplaced;
(52) existing under or by reason of applicable law;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(4) in the case of clause (4) of the type described in clause paragraph (a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business a), that (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created), (ii) that restrict the transfer of similar property or assets of the Company or any Restricted Subsidiary subject to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lienasset, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral Document.
Appears in 3 contracts
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of the Company to:
(1a) pay dividends or make any other distributions on any Equity Interests or in respect of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,its Capital Stock;
(2b) make loans or advances to the Company or any other Restricted Subsidiary, Subsidiary or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company; or
(3c) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions Subsidiary of Section 4.09(a) do not apply to any the Company, except in each case for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) applicable law, rule, regulation or order;
(2) the Indenture, the Notes and any Guarantees;
(3) customary non-assignment provisions of any contract or any lease, license or sublicense governing a leasehold interest of any Restricted Subsidiary of the Company;
(4) any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(5) agreements existing on the Issue Date to the extent and in this Indenture, the Guarantees, the Collateral Documents or any other manner such agreements are in effect on the Issue Date;
(6) the Bank Facility, an agreement governing other Pari Passu Indebtedness permitted to be incurred under the Indenture or, with respect to a Restricted Subsidiary, an agreement evidencing Indebtedness incurred not in violation of the Indenture; provided that, with respect to any agreement governing such other Pari Passu Indebtedness or other Indebtedness, as the case may be, the provisions relating to such encumbrance or restriction are no less favorable to the Company or Restricted Subsidiary, as the case may be, in any material respect as determined by the Board of Directors of the Company in its reasonable and good faith judgment than the provisions contained in the Bank Facility, in the case of such other Pari Passu Indebtedness, and the agreements of such Restricted Subsidiary, in the case of such other Indebtedness, in each case as in effect on the Issue Date;
(7) restrictions on the transfer of assets subject to any extensionsLien permitted under the Indenture imposed by the holder of such Xxxx;
(8) restrictions imposed by any agreement to sell assets or Capital Stock permitted under the Indenture to any Person pending the closing of such sale;
(9) such encumbrances or restrictions being binding on a Restricted Subsidiary at such time as such Restricted Subsidiary first becomes a Restricted Subsidiary, renewals, replacements provided that such encumbrances or refinancings restrictions are not entered into solely in contemplation of such Person becoming a Restricted Subsidiary;
(10) customary provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein) entered into in the ordinary course of business;
(11) any amendment to or Refinancing of the foregoingIndebtedness issued, assumed or incurred pursuant to an agreement referred to in clauses (2), (4), (5) and (6) above; provided that the encumbrances and restrictions provisions relating to such encumbrance or restriction contained in the extension, renewal, replacement or refinancingany such agreement, taken as a whole, are not materially no less favorable to the Noteholders (Company in any material respect as determined in by the reasonable judgment Board of Directors of the Company) Company in their reasonable and good faith judgment than the encumbrances provisions relating to such encumbrance or restrictions being extendedrestriction contained in agreements referred to in such clauses (2), renewed(4), replaced or refinanced(5) and (6);
(212) existing in the Credit Facilitiescustomary restrictions on leases, subleases, licenses, sublicenses or asset sale agreements otherwise permitted hereby;
(313) existing under restrictions imposed on cash or other deposits or net worth imposed by reason of applicable law customers or governmental regulation;
(4) existing (A) with respect to any Personrequired by insurance, surety or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, andbonding companies, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(5) of the type described in clause (a)(3) of this Section 4.09 arising or agreed to entered into in the ordinary course of business business; and
(i14) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease or license (but encumbrances and restrictions applicable only to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created), (ii) that restrict the transfer of property or assets Restricted Subsidiaries of the Company or any that are not Domestic Restricted Subsidiary subject to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 3 contracts
Samples: Fourth Supplemental Indenture (Equinix Inc), Third Supplemental Indenture (Equinix Inc), First Supplemental Indenture (Equinix Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, to create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
: (1i) existing on the Issue Closing Date in this Indenture; (ii) existing on the Acquisition Date in the Existing Indentures, the Guarantees, the Collateral Documents Senior Secured Credit Facilities or any other agreements (including the Concession Title) in effect on the Issue Closing Date or in effect on June 16, 1997 or on the Acquisition Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinanced;
replaced, (5iii) existing under or by reason of applicable law, (iv) existing with respect to any Person or the type described property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in clause contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, (a)(3v) of this Section 4.09 arising or agreed to in the ordinary course case of business transfers of any property or assets of a Restricted Subsidiary to the Company or any other Restricted Subsidiary (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary, (vi) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of or property and assets of, such Restricted Subsidiary; or (vii) for the benefit of any holder of a Lien permitted under Section 4.09. Nothing contained in this Indenture Section 4.05 shall prevent the Company or any Restricted Subsidiary from (but only i) creating, incurring, assuming or suffering to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) exist any Liens otherwise permitted in Section 4.09 or (iiiii) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 2 contracts
Samples: Indenture (Kansas City Southern), Indenture (TFM Sa De Cv)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b4.11(b), the Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2ii) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(iii) make loans or advances to the Company or any other Restricted Subsidiary, or
(3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a4.11(a) do not apply to any encumbrances or restrictions:
(1i) existing on the Issue Date as provided for in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental regulationlaw;
(4iii) existing (A) with respect to any Person, or to the property or assets Property of any Person, at the time such Person or the Person Property is acquired by the Company or any Restricted Subsidiary Subsidiary, which encumbrances or restrictions: (except A) are not applicable to any other Person or the extent such encumbrance was incurred in connection with or in contemplation Property of such acquisition), or any other Person; and (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiarywere not put in place in anticipation of such event, and, in each case, and any extensions, renewals, replacements or refinancings of any of the foregoing, ; provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(5iv) of the type described in clause (a)(3Section 4.11(a)(iv) of this Section 4.09 arising or agreed to in the ordinary course of business (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset Property that is subject to a lease or license or (but only B) by virtue of any Lien on, or agreement to the extent that such restriction is imposed by the instruments pursuant transfer, option or similar right with respect to which such lease or license is created)any Property of, (ii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary subject Subsidiary;
(v) with respect to a Lien Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or Property of, the Restricted Subsidiary that is permitted under this Indenture by Section 4.13;
(but only vi) with respect to the extent that such restriction is a Restricted Subsidiary and imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer any agreement governing Debt of property or assets of the Company or any Restricted Subsidiary that is subject permitted to a merger agreement, stock be Incurred pursuant to Section 4.07; provided that the encumbrance or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during customary in comparable transactions and will not materially affect the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)Company’s ability to pay interest or principal, when due, on the Notes;
(6vii) contained with respect to a Restricted Subsidiary and imposed pursuant to a customary provision in the terms governing any Debt (a joint venture, asset sale, or stock sale agreements or other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required similar agreement with respect to enable the Company or such Restricted Subsidiary to obtain or maintain a financing that was entered into in the ordinary course of that type; orbusiness;
(7viii) set forth imposed by the standard loan documentation in this Indenture, the Guarantees or any Collateral Document.connection with loans from (a)
Appears in 2 contracts
Samples: Indenture (Cosan Ltd.), Indenture (Cosan Ltd.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b)clause (b) below, the Company and Parent will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on or in respect of any Equity Interests of such a Restricted Subsidiary owned by Parent or any other Restricted Subsidiary,
(ii) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(2iii) make loans or advances to to, or Guarantee any Debt or other obligations of, or make any Investment in, the Company Company, Parent or any other Restricted Subsidiary, or
(3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(aclause (a) do not apply to any encumbrances or restrictions:
(1i) existing on the Issue Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Date, and any amendments, modifications, restatements, extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the amendment, modification, restatement, extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially in the good faith judgment of the Company or Parent, as the case may be, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being amended, modified, restated, extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law law, rule, regulation or governmental regulationorder;
(4iii) existing existing
(A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company Company, Parent or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, andwhich encumbrances or restrictions (i) are not applicable to any other Person or the property or assets of any other Person and (ii) were not put in place in anticipation of such event and any amendments, in each casemodifications, any restatements, extensions, renewals, replacements or refinancings of any of the foregoing, provided that the encumbrances and restrictions in the amendment, modification, restatement, extension, renewal, replacement or refinancing are, taken as a whole, in the good faith judgment of the Company or Parent, as the case may be, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being amended, modified, restated, extended, renewed, replaced or refinanced;
(5iv) of the type described in clause paragraph (a)(3a)(iv) of this Section 4.09 arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only similar contract, including with respect to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created)intellectual property, (ii) that restrict in a customary manner, pursuant to provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements, including the LGI-Chile Shareholders’ Agreement and the LGI-Colombia Shareholders’ Agreement and other similar agreements, the transfer of property ownership interests in, or assets of the Company of, such partnership, limited liability company, joint venture or any Restricted Subsidiary subject to a Lien permitted under this Indenture similar Person (but only in each case relating solely to the extent that such restriction is imposed by the instruments pursuant to which such Lienrespective partnership, limited liability company, joint venture or the obligation secured thereby, is createdsimilar Person) or (iii) that restrict the transfer by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of, the Company, Parent or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Company Capital Stock of, or any property and assets of, the Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)by Section 4.14;
(6A) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in good faith by the reasonable judgment of Company or Parent, as the Companycase may be) (i) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain ordinary and customary for a financing of that typetype and (ii) the encumbrances or restrictions either (x) would not, at the time agreed to, be expected to materially adversely affect the ability of the Company or any Guarantor to make payments on the Notes or (y) in the case of any Permitted Refinancing Debt, are, taken as a whole, no less favorable in any material respect to the Noteholders than those contained in the agreements governing the Debt being refinanced; or
(7B) set forth in this required pursuant to the Indenture, the Guarantees Notes or any Collateral DocumentNote Guaranty.
Appears in 2 contracts
Samples: Indenture (GeoPark LTD), Indenture (GeoPark Holdings LTD)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,;
(2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary, ; or
(3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to prohibit any encumbrances or restrictions:
(1i) existing on the Issue Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements agreement in effect on the Issue Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided provided, however, that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.06, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; or
(v) with respect to a Lien permitted under this Indenture (but only to the extent that such restriction is Restricted Subsidiary and imposed by the instruments pursuant to which such Lienan agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary. Nothing contained in this Section 4.06 shall prevent the obligation secured thereby, is createdCompany or any Restricted Subsidiary from (A) restricting the sale or (iii) that restrict the transfer other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary Subsidiaries or (B) creating, incurring, assuming or suffering to obtain or maintain a financing of that type; or
(7) set forth exist any Liens otherwise permitted pursuant to the indenture relating to the 1997 Senior Notes as in this Indenture, effect on the Guarantees or any Collateral DocumentDeemed Closing Date.
Appears in 2 contracts
Samples: Indenture (Winstar Communications Inc), Indenture (Winstar Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary and existing at the time of such acquisition, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; or
(v) with respect to a Lien permitted under this Indenture (but only to the extent that such restriction is Restricted Subsidiary and imposed by the instruments pursuant to which such Lienan agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary. Nothing contained in this Section 4.05 shall prevent the obligation secured therebyCompany or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 2 contracts
Samples: Senior Notes Indenture (Orionnet Finance Corp), Senior Discount Notes Indenture (Orionnet Finance Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a4.05(a) do shall not apply to restrict any encumbrances or restrictions:
: (1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, taken as a whole, replacements are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinanced;
replaced; (2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental regulation;
required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary; (4iii) existing (A) with respect to any Person, Person or to the property or assets of any Person, at the time the such Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or (B) with respect to any Unrestricted Subsidiary existing at the time it is designated of such acquisition and not incurred in contemplation thereof, which encumbrances or is deemed restrictions are not applicable to become a Restricted Subsidiaryany Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and, in each case, and any extensions, renewalsrenewals or replacements of such encumbrances or restrictions; provided, replacements or refinancings of any of the foregoinghowever, provided that the encumbrances and restrictions in the extensionany such extensions, renewal, replacement renewals or refinancing are, taken as a whole, replacements are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced renewed or refinanced;
replaced; (5iv) in the case of clause (iv) of the type described in clause paragraph (a)(3a) of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; (v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or (but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such Lien, Indebtedness was issued if (A) the encumbrance or restriction either (1) applies only in the obligation secured thereby, is created) event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement or (iii2) is contained in a Credit Agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines on the date of the Incurrence of such Indebtedness that restrict any such encumbrance or restriction would not be expected to materially impair the transfer Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 2 contracts
Samples: Indenture (Time Warner Telecom Inc), Indenture (Time Warner Telecom Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(bparagraph (b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit 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 on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(3) make loans or advances to the Company or any other Restricted Subsidiary, or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(aparagraph (a) do not apply to any encumbrances or restrictions:
(1) existing on the Issue Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements or instruments in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in under or by reason of applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Credit FacilitiesCompany or any Restricted Subsidiary or any of their businesses;
(3) existing under or by reason (including, without limitation, as part of applicable law or governmental regulation;the terms of any Acquired Debt)
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, andwhich encumbrances or restrictions (i) are not applicable to any other Person or the property or assets of any other Person and (ii) were not put in place in anticipation of such event, in each case, and any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no not materially less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(54) of the type described in clause (a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (iA) that restrict restricts in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license or similar contract, or the assignment or transfer of any lease, license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created)other contract, (iiB) that restrict the by virtue of any transfer of of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary subject to not otherwise prohibited by this Indenture, (C) contained in mortgages, pledges or other security agreements securing Debt of a Lien Restricted Subsidiary (permitted under by this Indenture (but only Indenture) to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to purchase money obligations or Capital Lease obligations (permitted by this Indenture) that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements, including, without limitation, any joint venture agreements, and instruments entered into in the ordinary course of business (including but not limited to leases, sale and leaseback agreements, asset sale agreements and joint venture and other similar agreements entered into in the ordinary course of business), or (H) pursuant to customary provisions in Hedging Agreements, permitted by this Indenture;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, the Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)by Section 4.13;
(6) contained in the terms governing any Permitted Refinancing Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in good faith by the reasonable judgment Board of the CompanyDirectors) the encumbrances or restrictions are necessary are, taken as a whole, no less favorable in any material respect to the Noteholders than those contained in the agreements governing the Debt being refinanced;
(7) any customary encumbrances or required restrictions contained in (i) any Credit Facilities extended to enable any Foreign Subsidiary of the Company permitted to be Incurred under this Indenture or (ii) Debt, Preferred Stock or Disqualified Stock permitted to be Incurred under this Indenture; provided that the Board of Directors determines in good faith that such Restricted Subsidiary restrictions will not have a material adverse effect on the Company’s ability to obtain or maintain pay principal and interest on the Notes;
(8) any customary restrictions imposed in connection with a financing of that typeSecuritization Financing; or
(79) set forth in required pursuant to this Indenture, the Guarantees or any Collateral Document.
Appears in 2 contracts
Samples: Senior Notes Indenture (Black Knight Financial Services, Inc.), Senior Notes Indenture (Lender Processing Services, Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(bparagraph (b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit 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 on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(3) make loans or advances to the Company or any other Restricted Subsidiary, or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(aparagraph (a) do not apply to any encumbrances or restrictions:
(1) existing on the Issue Date in this Indenture, the Guarantees, the Collateral Documents Indentures or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulationlaw;
(43) existing existing
(A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, andwhich encumbrances or restrictions (i) are not applicable to any other Person or the property or assets of any other Person and (ii) were not put in place in anticipation of such event, in each case, and any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(54) of the type described in clause (a)(3a)(4) of this Section 4.09 arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created)license, (ii) that restrict the transfer by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of of, the Company or any Restricted Subsidiary subject to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) not relating to any Debt;
(5) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that restrict has been entered into for the transfer sale or disposition of property all or assets substantially all of the Company Capital Stock of, or any property and assets of, the Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture by Section 4.10 and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)Section 4.13 ;
(6) customary restrictions with respect to a Finance Subsidiary, pursuant to the terms of the related financing by the Finance Subsidiary;
(7) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in good faith by the reasonable judgment Board of the CompanyDirectors)
(i) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain ordinary and customary for a financing of that typetype and (ii) the encumbrances or restrictions either (x) would not, at the time agreed to, be expected to materially adversely affect the ability of the Company to make payments on the Notes or (y) in the case of any Permitted Refinancing Debt, are, taken as a whole, no less favorable in any material respect to the Noteholders than those contained in the agreements governing the Debt being refinanced;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; or
(710) set forth in this Indenture, required pursuant to the Guarantees or any Collateral DocumentIndentures.
Appears in 2 contracts
Samples: Indenture (Vitro Sa De Cv), Indenture (Vitro Sa De Cv)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company GST will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company GST or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to GST or any other Restricted Subsidiary, (iii) make loans or advances to the Company GST or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company GST or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements agreement in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided PROVIDED that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by GST or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of GST or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company GST or any Restricted Subsidiary subject in any manner material to GST or any Restricted Subsidiary;
(v) with respect to a Lien Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(vi) with respect to any Development Company, imposed pursuant to or in connection with any Indebtedness Incurred by such Development Company to finance at least 50% of the total financing required for the development and construction of all of such Development Company's alternative access networks or any Indebtedness Incurred to refinance or replace such Indebtedness; PROVIDED that (a) such Indebtedness (including such refinancing Indebtedness) is permitted to be Incurred under this Indenture Section 4.03, (but b) such encumbrances and restrictions are no more restrictive in any material respect than those encumbrances and restrictions existing under the Tomen Facility as in effect on the Closing Date and (c) such encumbrances and restrictions shall only apply to such Development Company for so long as such Indebtedness (or such refinancing Indebtedness) remains outstanding; or
(vii) with respect to any Development Company (a "RESTRICTED DEVELOPMENT COMPANY"), imposed pursuant to or in connection with any Indebtedness Incurred by another Development Company to finance at least 50% of the total financing required for the development and construction of all of such other Development Company's alternative access networks or any Indebtedness Incurred to refinance or replace such Indebtedness; PROVIDED that (a) such encumbrances and restrictions shall not apply to such Restricted Development Company prior to the extent that occurrence of an event of default under such restriction Indebtedness (or refinancing Indebtedness), (b) such Indebtedness (including such refinancing Indebtedness) is imposed permitted to be Incurred under Section 4.03, (c) such encumbrances and restrictions are no more restrictive in any material respect than those contemplated by the instruments pursuant Tomen Facility as in effect on the Closing Date and (d) at least 50% of the total financing required for the development and construction of all of such Restricted Development Company's alternative access networks was provided by the holder of the Indebtedness of such other Development Company. The Company will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to which such Lienexist or become effective any of the matters referred to in the first paragraph of this section. Nothing contained in this Section 4.05 shall prevent GST or any Restricted Subsidiary from (1) creating, incurring, assuming or the obligation secured thereby, is created) suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company GST or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees GST or any Collateral Documentof its Restricted Subsidiaries.
Appears in 2 contracts
Samples: Indenture (GST Telecommunications Inc), Indenture (GST Telecommunications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company will The Borrower shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company Borrower or any other Restricted Subsidiary,;
(2ii) pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary;
(iii) make loans or advances to the Company Borrower or any other Restricted Subsidiary, ; or
(3iv) transfer any of its property or assets to the Company Borrower or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a9.4(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Date in this IndentureFebruary 20, the Guarantees, the Collateral Documents 2004 or any other agreements in effect on the Issue DateFebruary 20, 2004, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, taken as a whole, replacements are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Term Loan B Lenders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental regulationrequired by any regulatory authority having jurisdiction over the Borrower or any Restricted Subsidiary;
(4iii) existing (A) with respect to any PersonPerson or the property or assets of such Person acquired by the Borrower or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person, at Person other than such Person or the time the Person is acquired by the Company property or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation assets of such acquisition)Person so acquired, or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, and any extensions, renewalsrenewals or replacements of such encumbrances or restrictions; provided, replacements or refinancings of any of the foregoinghowever, provided that the encumbrances and restrictions in the extensionany such extensions, renewal, replacement renewals or refinancing are, taken as a whole, replacements are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Term Loan B Lenders than the those encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced renewed or refinancedreplaced;
(5iv) in the case of clause (iv) of the type described in clause paragraph (a)(3a) of this Section 4.09 arising or agreed to in the ordinary course of business 9.4, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, reduce the value of property or assets of the Company Borrower or any Restricted Subsidiary subject in any manner material to the Borrower or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such Lien, Indebtedness was issued if (A) the encumbrance or restriction either (1) applies only in the obligation secured thereby, is created) event of a payment default or non compliance with respect to a financial covenant contained in such Indebtedness or agreement or (iii2) is contained in a Credit Agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the Term Loan B Lenders (as defined in this Agreement) than is customary in comparable financings (as determined by the Borrower) and (C) the Borrower determines on the date of the Incurrence of such Indebtedness that restrict any such encumbrance or restriction would not be expected to materially impair the transfer Borrower’s ability to make principal or interest payments on the Term Loan B Loans.
(c) Nothing contained in this Section 9.4 shall prevent the Borrower or any Restricted Subsidiary from (1) creating, Incurring, assuming or suffering to exist any Liens otherwise permitted in Section 9.8 or (2) restricting the sale or other disposition of property or assets of the Company Borrower or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment secure Indebtedness of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees Borrower or any Collateral Documentof its Restricted Subsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (Time Warner Telecom Inc), Credit Agreement (Time Warner Telecom Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
: (1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, taken as a whole, replacements are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinanced;
replaced; (2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental regulation;
required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary; (4iii) existing (A) with respect to any Person, Person or to the property or assets of any Person, at the time the such Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or (B) with respect to any Unrestricted Subsidiary existing at the time it is designated of such acquisition and not incurred in contemplation thereof, which encumbrances or is deemed restrictions are not applicable to become a Restricted Subsidiaryany Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and, in each case, and any extensions, renewals, renewals or replacements of such encumbrances or refinancings of any of the foregoing, restrictions; provided that the encumbrances and restrictions in the extensionany such extensions, renewal, replacement renewals or refinancing are, taken as a whole, replacements are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced renewed or refinanced;
replaced; (5iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; (v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or (but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such Lien, Indebtedness was issued if (A) the encumbrance or restriction either (1) applies only in the obligation secured thereby, is created) event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement or (iii2) is contained in a Credit Agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines on the date of the Incurrence of such Indebtedness that restrict any such encumbrance or restriction would not be expected to materially impair either Obligors' ability to make principal or interest payments on the transfer Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 2 contracts
Samples: Indenture (Time Warner Telecom LLC), Indenture (Time Warner Telecom LLC)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
: (1i) existing on the Issue Closing Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinanced;
replaced; (5ii) existing under or by reason of applicable law; (iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject Subsidiary; (v) with respect to a merger agreement, stock Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or asset purchase agreement disposition of all or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment substantially all of the Company) the encumbrances Capital Stock of, or restrictions are necessary or required to enable the Company or property and assets of, such Restricted Subsidiary or (vi) relating solely to obtain or maintain a financing any Foreign Subsidiaries and supporting Indebtedness of that type; or
such Foreign Subsidiaries Incurred under clause (7x) set forth in this Indenture, of the Guarantees or any Collateral Document.second paragraph of
Appears in 2 contracts
Samples: Indenture (Ipc Information Systems Inc), Indenture (Ipc Information Systems Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(bparagraph (b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2ii) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(iii) make loans or advances to the Company or any other Restricted Subsidiary, or
(3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(aparagraph (a) do not apply to any encumbrances or restrictions:
(1i) existing on the Issue Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoingforegoing or of any subsequent extension, renewal, replacement or refinancing thereof; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially less favorable no more adverse in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental regulationlaw;
(4iii) existing existing
(A) with respect to any Person, or with respect to the any property or assets of any Personassets, at the time the Person is or property or assets are acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, which encumbrances or restrictions (x) are not applicable to any other Person or the property or assets of any other Person and (y) were not put in each case, place in anticipation of such event; and any extensions, renewals, replacements or refinancings of any of the foregoing, or of any subsequent extension, renewal, replacement or refinancing thereof, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable more adverse in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(5iv) of the type described in clause (a)(3a)(iv) of this Section 4.09 arising or agreed to to
(A) in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease or license license,
(but only B) with respect to the extent that such restriction is imposed by the instruments pursuant to any assets comprising a Permitted Business in which such lease or license is created), (ii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary subject to a Lien permitted under this Indenture (but only has ownership of an undivided interest, pursuant to the extent agreements under which such interest is owned or maintained, including, without limitation, options, put and call arrangements, rights of first refusal and similar rights, provided that such restriction is imposed restrictions are consistent with the Company’s past practice, or
(C) by the instruments pursuant to which such Lienvirtue of any Permitted Lien on, or the obligation secured therebyagreement to transfer, is created) option or (iii) that restrict the transfer of similar right with respect to, any property or assets of of, the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of or property and assets of the Restricted Subsidiary that is subject permitted by this Indenture;
(vi) on the ability of Restricted Subsidiaries to a merger agreementconsummate transactions of the type described in paragraph (a)(i), stock (ii), (iii) or asset purchase (iv) provided for by any credit agreement or similar agreement, so long as any such transfer is otherwise security document relating to Debt permitted to be incurred under this Indenture; provided that such restrictions are not more restrictive than the restrictions contained in this Indenture and such restriction is imposed only during or the period pending such disposition Credit Agreement;
(so long as such restriction does not continue for more than a customary period for transactions of such typevii) required pursuant to Section 4.06(b)(ii);
(6viii) imposed on any Joint Venture pursuant to customary limitations contained in the terms constituent documents and agreements governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that typeJoint Venture; or
(7ix) set forth existing under any credit agreement or security document relating to Debt incurred pursuant to clause (b)(x) or (b)(xi) under Section 4.06 or Permitted Refinancing Debt in this Indenture, respect thereof; provided that (a) such restrictions apply only to the Persons Incurring such Debt (including Guarantees or any Collateral Documentthereof) and their Subsidiaries and (b) such Debt is not Guaranteed by the Company.
Appears in 2 contracts
Samples: Indenture (Century California, LLC), Indenture (Century Aluminum Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b4.05(b), the Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(3) make loans or advances to the Company or any other Restricted Subsidiary, or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a4.05(a) do not apply to any encumbrances or restrictions:
(1) existing on the Issue Date as provided for in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Securityholders than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilitiesunder or by reason of applicable law;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets Property of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary Subsidiary, which encumbrances or restrictions: (except i) are not applicable to any other Person or the extent such encumbrance was incurred Property of any other Person; and (ii) were not put in connection with or place in contemplation anticipation of such acquisition)event, or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, and any extensions, renewals, replacements or refinancings of any of the foregoing, ; provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Securityholders than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(4) with respect to any agreement governing Debt of any Restricted Subsidiary that is permitted to be Incurred under Section 4.03; provided that (i) the encumbrance or restriction is not materially disadvantageous to the holders of the Securities than is customary in comparable financings, and (ii) the Company determines that on the date of the Incurrence of such Debt, that such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Securities;
(5) of the type described in clause (a)(3Section 4.05(a)(4) of this Section 4.09 arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset Property that is subject to a lease or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created), (ii) that restrict the transfer by virtue of property any Lien on, or assets of agreement to transfer, option or similar right with respect to any Property of, the Company or any Restricted Subsidiary subject to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)Subsidiary;
(6) contained in with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the terms governing any Debt (other than Trade Obligations) otherwise sale or disposition of all or substantially all of the Capital Stock of, or Property of, the Restricted Subsidiary that is permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; orSection 4.06;
(7) set forth with respect to a Restricted Subsidiary and imposed pursuant to a customary provision in a joint venture or other similar agreement with respect to such Restricted Subsidiary that was entered into in the ordinary course of business;
(8) imposed by the standard loan documentation in connection with loans from (a) Banco Nacional de Desenvolvimento Econômico e Social—BNDES (including loans from Financiadora de Estudos e Projetos—FINEP), or any other Brazilian governmental development bank or credit agency or (b) any international or multilateral development bank, government-sponsored agency, export-import bank or official export-import credit insurer; and
(9) required pursuant to this Indenture, the Guarantees or any Collateral Document.
Appears in 2 contracts
Samples: Indenture (Fibria Celulose S.A.), Indenture (Fibria Celulose S.A.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided PROVIDED that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements of the agreement containing such encumbrance or restriction; PROVIDED that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company, or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(but only to vi) contained in the extent that such restriction is imposed by terms of Indebtedness having an aggregate principal amount not in excess of the instruments greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such LienIndebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined by the Company), (C) the Company determines that any such encumbrance or restriction will not materially affect its ability to make principal or interest payments on the Notes, (D) if the aggregate principal amount of such Indebtedness exceeds the greater of (1) $5 million and (2) 5% of Consolidated EBITDA for the Four Quarter Period, the documents pursuant to which all such indebtedness in excess of such amount is outstanding expressly state that such Restricted Subsidiary shall be entitled to take the actions referred to in clauses (i) through (iv) of the first paragraph of this Section 4.05 in an amount not to exceed 50% of the consolidated net income of such Restricted Subsidiary (after making adjustments thereto in the nature of the adjustments referred to in the definition of "Adjusted Consolidated Net Income") and (E) the Investments made by the Company and its Restricted Subsidiaries in such Restricted Subsidiary are reasonably related to the business of such Restricted Subsidiary; and
(vii) provisions contained in agreements or instruments which prohibit the payment of dividends or the obligation secured therebymaking of other distributions with respect to any particular class of Capital Stock of a Person other than on a PRO RATA basis. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 2 contracts
Samples: Indenture (Econophone Inc), Indenture (Econophone Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b3.14(b), the Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on or in respect of its Capital Stock to the Company or any Equity Interests of such other Restricted Subsidiary owned by or pay any Indebtedness owed to the Company or any other Restricted Subsidiary,;
(2) make loans or advances to to, or Guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary, ; or
(3) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a3.14(a) do will not apply to any encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on applicable law;
(2) the Issue Date in this Indenture, ;
(3) the Guarantees, the Collateral Documents or any other agreements Bank Credit Facility as in effect on the Issue Date, and any extensionsamendments, restatements, renewals, replacements or refinancings of thereof; provided, that any of the foregoing; provided that the encumbrances and restrictions in the extensionamendment, restatement, renewal, replacement or refinancing, taken as a whole, are refinancing is not materially less favorable more restrictive with respect to the Noteholders (as determined in the reasonable judgment of the Company) than the such encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing than those in existence on the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulationIssue Date;
(4) existing customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;
(A5) with respect any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or to the property properties or assets of any Person, at the time other than the Person is acquired by or the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(5) of the type described in clause (a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created), (ii) that restrict the transfer of property properties or assets of the Company or any Restricted Subsidiary subject to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, Person so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)acquired;
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment restrictions with respect to a Restricted Subsidiary of the Company) Company imposed pursuant to a binding agreement which has been entered into for the encumbrances sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions are necessary apply solely to the Capital Stock or required to enable the Company or assets of such Restricted Subsidiary to obtain being sold;
(7) customary restrictions imposed on the transfer of copyrighted or maintain a financing of that typepatented materials; or
(7) set forth 8) an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in this IndentureSection 3.14(b)(5); provided, that such Refinancing agreement is not more restrictive with respect to such encumbrances or restrictions than those contained in the Guarantees or any Collateral Documentagreement referred to in such clause (5).
Appears in 2 contracts
Samples: Indenture (CCI International, Inc.), Indenture (Baron Wire & Cable Corp.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1a) pay dividends dividends, in cash or otherwise, or make any other distributions on or in respect of its Capital Stock, (b) pay any Equity Interests of such Restricted Subsidiary owned by Indebtedness owed to the Company or any other Restricted Subsidiary,
, (2c) make loans or advances to the Company or any other Restricted Subsidiary, or
(3d) transfer any of its property properties or assets to the Company or any other Restricted Subsidiary.
Subsidiary (b) The provisions other than customary restrictions on transfers of Section 4.09(a) do property subject to a Lien permitted under this Indenture that would not apply materially adversely affect the Company's ability to any encumbrances or restrictions:
(1) existing on satisfy its obligations under the Issue Date in Notes and this Indenture, ) or (e) guarantee any Indebtedness of the Guarantees, the Collateral Documents Company or any other agreements in effect on the Issue DateRestricted Subsidiary, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the except for such encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of (i) any agreement in effect on the date of this Indenture, (ii) applicable law law, (iii) customary provisions restricting subletting or governmental regulation;
(4) existing (A) with respect assignment of any lease or assignment of any other contract to which the Company or any Person, Restricted Subsidiary is a party or to the property which any of their respective properties or assets are subject, (iv) any agreement or other instrument of any Person, at the time the a Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary existence at the time it of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is designated not applicable to any Person, or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements the properties or refinancings assets of any of the foregoingPerson, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) other than the encumbrances Person, or restrictions being extended, renewed, replaced or refinanced;
(5) of the type described in clause (a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created), (ii) that restrict the transfer of property or assets of the Company Person, so acquired, (v) any encumbrance or any Restricted Subsidiary subject to a Lien restriction contained in contracts for sales of assets permitted under this Indenture (but only by Section 1015 with respect to the extent that such restriction is imposed by the instruments assets to be sold pursuant to which such Liencontract and (vi) any encumbrance or restriction existing under any agreement that extends, renews, refinances or replaces the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) agreements containing the encumbrances or restrictions in the foregoing clauses (i) and (iv); provided that the terms and conditions of any such encumbrances or restrictions are necessary no less favorable to the holders of the Notes than those under or required pursuant to enable the Company agreement so extended, renewed, refinanced or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral Documentreplaced.
Appears in 2 contracts
Samples: Indenture (Nine West Group Inc /De), Indenture (Nine West Group Inc /De)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary (other than the Guarantors) to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary (other than the Guarantors) to:
(1) pay dividends or make any other distributions on its Capital Stock (or with respect to any Equity Interests of such Restricted Subsidiary owned by other interest or participation in, or measured by, its profits) to the Company or any other Restricted Subsidiary,Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) pay any liabilities owed to the Company or any of Restricted Subsidiary;
(3) make loans or advances to the Company or any Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary, Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(34) sell, lease or transfer any of its property properties or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a4.10(a) do will not apply to any encumbrances or restrictionsrestrictions existing under, by reason of or with respect to:
(1) existing on the Issue Date in this Indenture, the Guarantees, the Collateral Documents Existing Indebtedness or any other agreements in effect on the Issue Date, Date and any amendments, modifications, restatements, renewals, extensions, renewalssupplements, refundings, replacements or refinancings of any of the foregoingthereof; provided that the encumbrances and restrictions in the extensionany such amendments, renewalmodifications, replacement restatements, renewals, extensions, supplements, refundings, replacements or refinancingrefinancings, taken as a whole, are not materially less favorable to the Noteholders (not, as determined by the Company or a direct or indirect parent of the Company in good faith, materially more restrictive than those contained in the reasonable judgment of Existing Indebtedness or such other agreements, as the Company) than case may be, as in effect on the encumbrances or restrictions being extended, renewed, replaced or refinancedIssue Date;
(2) existing in this Indenture, the Credit FacilitiesNotes and the Note Guarantees and other documents relating to this Indenture, the Notes or the Note Guarantees;
(3) existing under applicable law, rule, regulation or by reason of applicable law or governmental regulationorder;
(4) existing any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary that was in existence at the time of such acquisition (A) with respect but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or to the property properties or assets of any Person, at other than the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Person, or (B) with respect to any Unrestricted Subsidiary at the time it is designated property or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any assets of the foregoingPerson, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinancedso acquired;
(5) customary encumbrances or restrictions contained in contracts or agreements for the sale of assets applicable to such assets pending consummation of such sale, including customary restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement entered into for the type described sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary;
(6) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in clause the ordinary course of business;
(a)(37) of this Section 4.09 encumbrances or restrictions arising or agreed to in the ordinary course of business (i) business, not relating to any Indebtedness, and that restrict do not, individually or in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created)aggregate, (iix) that restrict detract from the transfer value of the property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary or (y) affect the Company’s ability to make anticipated principal or interest payment on the Notes in any material respect (in each case as determined by the Company or a direct or indirect parent of the Company in good faith);
(8) encumbrances or restrictions that restrict distributions or transfers by a Restricted Subsidiary if such restrictions exist under, by reason of or with respect to any agreement for the sale or other disposition of all or substantially all of the Capital Stock of, or property and assets of, that Restricted Subsidiary and are pending such sale or other disposition;
(9) customary provisions contained in leases, licenses, contracts and other similar agreements entered into in the ordinary course of business to the extent imposing restrictions of the type described in clause (4) of Section 4.10(a) on the property subject to such lease;
(10) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business and which the Board of Directors of the Company or a Lien direct or indirect parent of the Company determines in good faith will not adversely affect the Company’s ability to make payments of principal or interest on the Notes;
(11) Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.06 to the extent limiting the right of the debtor to dispose of the assets securing such Indebtedness;
(12) any agreement or instrument relating to Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary permitted to be Incurred under this Indenture following the Issue Date if (but A) the encumbrances or restrictions are not materially more disadvantageous to the Holders than is customary in comparable financings (as determined in good faith by the Company or a direct or indirect parent of the Company) and (B) either (x) the Company determines that such encumbrance or restriction will not adversely affect the Company’s ability to make principal and interest payments on the Notes as and when they come due or (y) such encumbrances and restrictions only apply during the continuance of a default in respect of a payment or financial maintenance covenant default in respect of such Indebtedness;
(13) customary provisions in (x) joint venture agreements entered into in the ordinary course of business with respect to the Equity Interests subject to the joint venture and (y) operating or other similar agreements, asset sale agreements and stock sale agreements entered into in connection with the entering into of such transaction, which limitation is applicable only to the assets that are the subject of those agreements;
(14) purchase money obligations for property acquired, IRUs and Finance Lease Obligations in the ordinary course of business to the extent imposing restrictions on the property so acquired;
(15) any encumbrance or restriction of a Receivables Subsidiary effected in connection with a Qualified Receivables Financing; provided, however, that such restriction is imposed by the instruments pursuant restrictions apply only to which such LienReceivables Subsidiary and its assets;
(16) other Indebtedness, Disqualified Stock or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets Preferred Stock of the Company or any Restricted Subsidiary that is subject Incurred subsequent to a merger agreement, stock or asset purchase the Issue Date pursuant Section 4.03; provided that such encumbrances and restrictions contained in any agreement or similar agreement, so long instrument will not materially affect the Company’s ability to make anticipated principal or interest payment on the Notes (as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during determined by the period pending such disposition (so long as such restriction does not continue for more than Company or a customary period for transactions direct or indirect parent of such typethe Company in good faith);
(617) Permitted Refinancing Indebtedness; provided that the encumbrances and restrictions contained in the terms agreements governing any Debt (other that Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than Trade Obligations) otherwise permitted under this Indenture, if those contained in the agreements governing the Indebtedness being refinanced (as determined by the Company or a direct or indirect parent of the Company in good faith;
(18) Indebtedness of non-Guarantor Subsidiaries permitted to be Incurred pursuant to the provisions of Section 4.03; and
(19) any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (18) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the reasonable good faith judgment of the Company or a direct or indirect parent of the Company) the , not materially more restrictive as a whole with respect to such encumbrances or restrictions are necessary than prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral Documentrefinancing.
Appears in 2 contracts
Samples: Indenture (Cogent Communications Holdings, Inc.), Indenture
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,;
(2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary, ; or
(3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any modifications, extensions, refinancings, renewals, substitutions or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such modifications, renewalextensions, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensionsrefinancings, renewals, substitutions or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being modified, extended, refinanced, renewed, replaced substituted or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired and any modifications, extensions, refinancings, renewals, substitutions or replacements of such agreements; provided that the encumbrances and restrictions in any such modifications, extensions, refinancings, renewals, substitutions or replacements are no less favorable in any material respect to the holders of Notes than those encumbrances or restrictions that are then in effect and that are being modified, extended, refinanced, renewed, substituted or replaced;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the GuaranteesSenior Dollar Notes Indenture, the Collateral Documents Senior Euro Notes Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes; or
(vii) imposed in connection with a transaction described in clause (f) of the proviso to the definition of "Asset Sale" and relating solely to a Restricted Subsidiary that transfers assets to the special purpose entity referred to therein; provided that the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 hereof or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Viatel Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b4.10(b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit 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 on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(3) make loans or advances to the Company or any other Restricted Subsidiary, or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a4.10(a) do not apply to any encumbrances or restrictions:
(1) existing on the Issue Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;existing
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, andwhich encumbrances or restrictions (i) are not applicable to any other Person or the property or assets of any other Person and (ii) were not put in place in anticipation of such event, in each case, and any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(53) of the type described in clause (a)(3Section 4.10(a)(4) of this Section 4.09 arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license or license Purchase Money Obligation or (but ii) by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of, the Company or any Restricted Subsidiary;
(4) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, the Restricted Subsidiary that is permitted by Section 4.13;
(5) contained in the terms governing any Debt if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are ordinary and customary for a financing of that type and (ii) the encumbrances or restrictions either (x) would not, at the time agreed to, be expected to materially adversely affect the ability of the Company to make payments on the Notes or (y) in the case of any Permitted Refinancing Debt, are, taken as a whole, no less favorable in any material respect to the Noteholders than those contained in the agreements governing the Debt being refinanced;
(6) existing under or by reason of applicable law or any applicable rule, regulation or order;
(7) existing under or by reason of joint venture agreements and other similar agreements that prohibit actions of the type described in Section 4.10(a) above, which prohibitions are applicable only to the extent entity or assets that are the subject of such restriction is arrangements;
(8) (A) on cash or other deposits or net worth imposed by customers or supplied under agreements entered into in the instruments pursuant to which such lease or license is created)ordinary course of business, (iiB) that restrict arises or is agreed to in the transfer ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary or adversely affect the ability of the Company to obtain make interest and principal payments with respect to the Notes or maintain a financing of that type(C) pursuant to Interest Rate Protection Agreements; or
(79) set forth in required pursuant to this Indenture, the Guarantees or any Collateral Document.
Appears in 1 contract
Samples: Indenture (J2 Global, Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,;
(2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary, ; or
(3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to prohibit any encumbrances or restrictions:
(1i) existing on the Issue Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements agreement in effect on the Issue Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided provided, however, that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.06, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; or
(v) with respect to a Lien permitted under this Indenture (but only to the extent that such restriction is Restricted Subsidiary and imposed by the instruments pursuant to which such Lienan agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary. Nothing contained in this Section 4.06 shall prevent the obligation secured thereby, is createdCompany or any Restricted Subsidiary from (i) restricting the sale or (iii) that restrict the transfer other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject secure Indebtedness of the Company or any of its Restricted Subsidiaries or (ii) creating, incurring, assuming or suffering to a merger agreement, stock or asset purchase agreement or similar agreement, so long as exist any such transfer is Liens otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment Section 4.09 of the Company) March 1997 Senior Notes Indenture as in effect on the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentDeemed Closing Date.
Appears in 1 contract
Samples: Senior Subordinated Deferred Interest Notes Indenture (Winstar Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
: (1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch 141 41 agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinanced;
replaced; (5ii) existing under or by reason of applicable law, rule or regulation or, to the extent not material to the Company, at the behest of regulatory authorities; (iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.04, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; (v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; (but only vi) with respect to Restricted Subsidiaries in which, on and subsequent to the extent Closing Date, the Company and its Restricted Subsidiaries only make Investments that are evidenced by unsubordinated promissory notes that bear a reasonable rate of interest and are payable prior to the Stated Maturity of the Notes; provided that such restriction encumbrances and restrictions expressly allow the payment of interest and principal on such promissory notes; (vii) solely of the type referred to in clause (iii) or (iv) of the first paragraph of this Section 4.04 that are contained in any stockholders' agreement, joint venture agreement or similar agreement among owners of Common Stock of a Restricted Subsidiary; provided that such restrictions consist solely of requirements that transactions between such Restricted Subsidiaries and Affiliates thereof (including the Company and its Restricted Subsidiaries) be on fair and reasonable terms no less favorable to such Restricted Subsidiary than could be obtained in a comparable arm's-length transaction with a Person that is imposed by not such an Affiliate; or (viii) contained in the instruments terms of any Indebtedness or any agreement pursuant to which such Lien, Indebtedness was issued if the Board of Directors of the Company determines that such encumbrance or restriction together with encumbrances and restrictions of any other Indebtedness will not materially affect the obligation secured thereby, is created) Company's ability to make interest or principal payments on the Notes; or (iiiix) contained in the agreement pertaining to the Proposed ING Credit Facility, provided that restrict the transfer terms thereof are not materially more restrictive than those set forth in the offer letter from ING Barings dated July 24, 1997, including the Term Sheet attached thereto. Nothing contained in this Section 4.04 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.08 or (2) 142 42 restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements of the agreement containing such encumbrance or restriction; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) existing by virtue of any transfer of, agreement to transfer, option or right with 55 50 respect to, or Lien on, any property or assets of the Company, or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes; and
(vii) provisions contained in agreements or instruments which prohibit the payment of dividends or the obligation secured therebymaking of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basis. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, not and will not permit any Restricted Subsidiary to, to directly or indirectly, create or otherwise cause or permit 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 on any Equity Interests the Capital Stock of such the Restricted Subsidiary owned by the Company to the Company or any other Restricted Subsidiary,;
(2) pay any Indebtedness owed to the Company or any Restricted Subsidiary;
(3) make loans or advances to the Company or any other Restricted Subsidiary, ; or
(34) transfer any of its property properties or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a) do . However, the preceding restrictions will not apply to any encumbrances or restrictions:
(1) existing on the Issue Date in this Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3i) existing under or by reason of applicable law or governmental regulationrule, regulation or order;
(4ii) existing (A) with respect to any Person, or to the on any property or assets of any Person, at the time the acquired from a Person which is acquired by or merged with or into the Company or any Restricted Subsidiary (except Subsidiary, or by reason of any Liens on the property or assets, or relating to the extent Indebtedness, of any Person or other entity existing at the time such encumbrance was incurred Person or other entity becomes a Restricted Subsidiary, or restriction relating to Indebtedness of any such Person and, in any such case, is not created as a result of or in connection with or in contemplation anticipation of any such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, transaction; provided that such Liens and any extensions, renewals, replacements or refinancings of refinancing thereof may not extend to any of other property owned by the foregoing, Company or any Restricted Subsidiary; provided further that the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment Holders of the Company) Notes than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(5iii) on any property or assets existing at the time of acquisition thereof and which are not created as a result of or in connection with or in anticipation of such acquisition; provided that such encumbrances and restrictions and any extensions, renewals, replacements or refinancing thereof may not extend to any other property owned by the Company or any Restricted Subsidiary; provided further that the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Holders of the type described Notes than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(iv) in the case of clause (a)(34) above:
(a) that exist by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Section 4.09 arising or agreed to in the ordinary course of business Indenture;
(ib) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract or contractual right; or
(c) imposed by Purchase Money Indebtedness for property acquired in the ordinary course of business or by Capitalized Lease Obligations permitted under this Indenture on the property so acquired, but only to the extent that such restriction is imposed by the instruments pursuant to which such lease encumbrances or license is created), (ii) that restrictions restrict the transfer of property or assets of the Company or any Restricted Subsidiary subject to a Lien permitted under this Indenture property;
(but only to the extent that such restriction is v) imposed by the instruments pursuant to which such Lienstandard loan documentation in connection with loans from (i) Banco Nacional de Desenvolvimento Econômico e Social—BNDES (including loans from Financiadora de Estudos e Projetos— FINEP) or any other Brazilian or Argentine governmental development bank (including, without limitation, Fundo de Desenvolvimento do Centro Oeste – FDCO), credit agency or other entity, or (ii) the obligation secured therebyInternational Finance Corporation or any other international or multilateral development bank, is createdgovernment sponsored agency, export-import bank or official export-import credit insurer to any Restricted Subsidiary;
(vi) or (iii) that restrict the transfer of property or assets imposed by any agreement governing Indebtedness of the Company or any Restricted Subsidiary that is subject permitted to a merger agreement, stock be Incurred by the covenant described under Section 4.03; provided that the encumbrance or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during customary in comparable financings and will not materially affect the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)Company’s ability to pay interest or principal, when due, on the Notes;
(6vii) contained existing by reason of Liens that secure Indebtedness otherwise permitted to be incurred under the provisions of the covenant described under Section 4.09 above and that limit the right of the debtor to dispose of the assets subject to such Liens;
(viii) imposed with respect to a Restricted Subsidiary pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition;
(ix) with respect to a Restricted Subsidiary and imposed pursuant to a customary provision in a joint venture or other similar agreement with respect to such Restricted Subsidiary that was entered into in the terms governing any Debt ordinary course of business;
(other than Trade Obligationsx) otherwise permitted under required pursuant to this Indenture; or
(xi) existing on the Issue Date and any amendments, if (as determined extensions, renewals, replacements or refinancing thereof; provided that the encumbrances and restrictions in the reasonable judgment extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Holders of the Company) Notes than the encumbrances or restrictions are necessary being extended, renewed, replaced or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral Documentrefinanced.
Appears in 1 contract
Samples: Indenture (Adecoagro S.A.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Working Capital Facility or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the EXHIBIT 4.17 encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Acme Metals Inc /De/)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue DateClosing Date (and upon consummation of the Stone Transaction, existing on the Stone Transaction Date in the Stone Credit Agreement or any other agreements in effect on the Stone Transaction Date under which Stone or any of its Subsidiaries is a party or any of their assets are bound), and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, taken as a whole, replacements are not materially less favorable taken as a whole to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental regulationlaw;
(4iii) existing (A) with respect to any Person, Person or to the property or assets of any Person, at the time the such Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or (B) with respect to any Unrestricted Subsidiary existing at the time it is designated or is deemed to become a Restricted Subsidiaryof such acquisition and not incurred in contemplation thereof, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the which encumbrances or restrictions being extended, renewed, replaced are not applicable to any Person or refinancedthe property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(5iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company and its Restricted Subsidiaries taken as a whole;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(but only vi) customary provisions with respect to the extent that such restriction is imposed by 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 instruments ordinary course of business;
(vii) any agreement or instrument governing Indebtedness (whether or not outstanding) of any Foreign Subsidiary of the Company permitted to be incurred pursuant to which clause (x) under Section 4.03 so long as (1) such Lien, agreement or instrument is not applicable to any Person or the obligation secured therebyproperty or assets of any Person other than such Foreign Subsidiary or the property or assets of such Foreign Subsidiary and its Foreign Subsidiaries and (2) not more than 20% of such Foreign Subsidiary's assets are located in the United States; and
(viii) any restriction in any agreement or instrument of a Receivables Subsidiary governing a Qualified Securitization Transaction. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted by Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Jsce Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company will The Borrower shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company Borrower or any other Restricted Subsidiary,;
(2ii) pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary;
(iii) make loans or advances to the Company Borrower or any other Restricted Subsidiary, ; or
(3iv) transfer any of its property or assets to the Company Borrower or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a9.4(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Date in this IndentureMarch 17, the Guarantees, the Collateral Documents 2010 or any other agreements in effect on the Issue DateMarch 17, 2010, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided provided, however, that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, taken as a whole, replacements are not materially no less favorable in any material respect to the Noteholders (as determined in Term Loan B Lenders or the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental regulationrequired by any regulatory authority having jurisdiction over the Borrower or any Restricted Subsidiary;
(4iii) existing (A) with respect to any PersonPerson or the property or assets of such Person acquired by the Borrower or any Restricted Subsidiary, existing at the time of such acquisition and not Incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person, at Person other than such Person or the time the Person is acquired by the Company property or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation assets of such acquisition)Person so acquired, or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, and any extensions, renewalsrenewals or replacements of such encumbrances or restrictions; provided, replacements or refinancings of any of the foregoinghowever, provided that the encumbrances and restrictions in the extensionany such extensions, renewal, replacement renewals or refinancing are, taken as a whole, replacements are no less favorable in any material respect to the Noteholders (as determined in Term Loan B Lenders or the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced renewed or refinancedreplaced;
(5iv) in the case of clause (iv) of the type described in clause Section 9.4(a):
(a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset;
(B) existing by virtue of any transfer of, agreement to a lease transfer, option or license (but only to right with respect to, or Lien on, any property or assets of the extent that such restriction is imposed Borrower or any Restricted Subsidiary not otherwise prohibited by the instruments pursuant 2018 Senior Note Indenture; or
(C) arising or agreed to which such lease in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or license is created)in the aggregate, (ii) that restrict reduce the transfer value of property or assets of the Company Borrower or any Restricted Subsidiary subject in any manner material to the Borrower or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such Lien, Indebtedness was issued if:
(A) the encumbrance or restriction either: (1) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (2) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Term Loan B Lenders of the Term Loan B Loans or the obligation secured therebyHolders than is customary in comparable financings (as determined by the Borrower); and
(C) the Borrower determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Borrower’s ability to make principal or interest payments on the Term Loan B Loans or the 2018 Senior Notes. Nothing contained in this Section 9.4 shall prevent the Borrower or any Restricted Subsidiary from: (1) creating, is created) Incurring, assuming or suffering to exist any Liens otherwise permitted in Section 9.8 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company Borrower or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment secure Indebtedness of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees Borrower or any Collateral Documentof its Restricted Subsidiaries.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Tw Telecom Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Allegiance Telecom Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company JLL will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company JLL or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to JLL or any other Restricted Subsidiary, (iii) make loans or advances to the Company JLL or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company JLL or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, taken as a whole, replacements are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment Holders of the Company) Notes than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental government regulation;
(4iii) existing (A) with respect to any Personperson or the property or assets of such person acquired by JLL or any Restricted Subsidiary, existing at the time of such acquisition or at the time such person becomes a Restricted Subsidiary and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any person or the property or assets of any Person, at person other than such person or the time the Person is acquired by the Company property or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation assets of such acquisition), person so acquired or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become that becomes a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(5iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of JLL or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company JLL or any Restricted Subsidiary subject in any manner material to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company JLL or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)Subsidiary;
(6v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(vi) any restriction on cash, other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(vii) contained in the terms governing of any Debt Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(other A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than Trade Obligations) otherwise permitted under this Indenture, if is customary in comparable financings (as determined by JLL in the reasonable judgment of good faith) and
(C) JLL determines that any such encumbrance or restriction will not materially affect the Company) 's ability to make principal or interest payments on the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that typeNotes; or
(7) set forth in this Indenture, the Guarantees or any Collateral Document.
Appears in 1 contract
Samples: Indenture (Jones Lang Lasalle Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary and existing at the time of such acquisition, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; or
(v) with respect to a Lien permitted under this Indenture (but only to the extent that such restriction is Restricted Subsidiary and imposed by the instruments pursuant to which such Lienan agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary. 52 45 Nothing contained in this Section 4.05 shall prevent the obligation secured therebyCompany or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Powertel Inc /De/)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary and existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements of such agreements; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Bti Telecom Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in the AT&T Facility, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided PROVIDED that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law, rule, regulation or order;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject to a Lien permitted under this Indenture (but only in any manner material to the extent Company or any Restricted Subsidiary or (D) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in clause (iv) above on the property so acquired;
(v) with respect to the Company or a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale of assets, including, without limitation, customary restrictions on the disposition of all or substantially all of the Capital Stock of, or property and assets of, such restriction is imposed by Restricted Subsidiary or the instruments Company;
(vi) contained in the terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued (in each case other than Indebtedness incurred under the AT&T Facility) if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes;
(vii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(viii) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business; and
(ix) any encumbrances or restrictions of the type referred to in clauses (i) - (iv) of the first paragraph of this Section 4.05 imposed by any amendments, is createdmodifications, renewals, restatements, increases, supplements, refundings, replacements or refinancings of the contracts referred to in clauses (i) through (viii) above; PROVIDED that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Company, not materially more disadvantageous to the Holders than those contained in the restriction prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 hereof or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (KMC Telecom Holdings Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends dividends, in cash or otherwise, or make any other distributions permitted by applicable law, on any Equity Interests Capital Stock or any other interest or participation in, or measured by, its profits of such Restricted Subsidiary owned by the Company Issuer or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary, (iii) make loans or advances to the Company Issuer or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(asubsection (a) do above shall not apply to restrict any encumbrances or restrictions:
(1i) existing on in the Issue Date in this 1998 Senior Notes Indenture, the Guarantees, the Collateral Documents this Indenture or any other agreements in effect on the 1998 Senior Notes Issue Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the type described property or assets of such Person acquired by the Issuer or any Restricted Subsidiary and existing at the time of such acquisition and not incurred in clause contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(a)(3iv) of this Section 4.09 arising or agreed to in the ordinary course case of business Section 10.19(a)(iv) above, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company Issuer or any Restricted Subsidiary subject in any manner material to the Issuer or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or 104
(but only vi) pursuant to (x) a Credit Facility, (y) a Vendor Credit Facility or (z) any agreement which amends, extends, renews, refinances, replaces or refunds a Credit Facility or Vendor Credit Facility provided, however, that in the case of subclauses (x), (y) and (z), the provisions of the Credit Facility or Vendor Credit Facility (A) permit (whether explicitly or as a result of the relative maturities of the Credit Facility, the Vendor Credit Facility and the Notes) distributions to the extent Issuer for the purposes of, and in an amount sufficient to fund, the payment of principal due at stated maturity and interest in respect of the Notes (provided, in either case, that such payment is due or to become due within 30 days from the date of such distribution) at a time when there does not exist an event which after notice or passage of time or both would permit the lenders under the Credit Facility or Vendor Credit Facility to declare all amounts thereunder due and payable, and (B) provide that in no event shall any encumbrance or restriction is imposed by the instruments pursuant to which the Credit Facility or Vendor Credit Facility prohibit distributions to the Issuer for such Lienpurposes for more than 180 days in any consecutive 360 day period, unless (1) there exists a default under the Credit Facility or Vendor Credit Facility resulting from any payment default under the obligation secured thereby, is created) Credit Facility or Vendor Credit Facility or (iii2) that restrict the transfer maturity of the Credit Facility or Vendor Credit Facility has been accelerated.
(c) Nothing contained in this Section 10.19 shall prevent the Issuer or any Restricted Subsidiary from (i) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 10.16 hereof or (ii) restricting the sale or other disposition of property or assets of the Company Issuer or any of its Restricted Subsidiary that is Subsidiaries subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentLiens.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, replacements taken as a whole, whole are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture (but only to the extent that such restriction is Restricted Subsidiary and imposed by the instruments pursuant to which such Lienan agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; Nothing contained in this Section 4.05 shall prevent the obligation secured therebyCompany or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Steel Dynamics Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b4.10(b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit 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 on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(3) make loans or advances to the Company or any other Restricted Subsidiary, or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a4.10(a) do not apply to any encumbrances or restrictions:
(1) existing on the Issue Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;existing
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, andwhich encumbrances or restrictions (i) are not applicable to any other Person or the property or assets of any other Person and (ii) were not put in place in anticipation of such event, in each case, and any extensions, renewals, replacements or refinancings of any of the foregoing, ; provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(53) of the type described in clause (a)(3Section 4.10(a)(4) of this Section 4.09 arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license or license Purchase Money Obligation or (but ii) by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of, the Company or any Restricted Subsidiary;
(4) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, the Restricted Subsidiary that is permitted by Section 4.13;
(5) contained in the terms governing any Debt if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are ordinary and customary for a financing of that type and (ii) the encumbrances or restrictions either (x) would not, at the time agreed to, be expected to materially adversely affect the ability of the Company to make payments on the Notes or (y) in the case of any Permitted Refinancing Debt, are, taken as a whole, no less favorable in any material respect to the Noteholders than those contained in the agreements governing the Debt being refinanced;
(6) existing under or by reason of applicable law or any applicable rule, regulation or order;
(7) existing under or by reason of joint venture agreements, minority equity investments and other similar agreements that prohibit actions of the type described in Section 4.10(a) above, which prohibitions are applicable only to the extent entity or assets that are the subject of such restriction is arrangements;
(8) (A) on cash or other deposits or net worth imposed by customers or supplied under agreements entered into in the instruments pursuant to which such lease or license is created)ordinary course of business, (iiB) that restrict arises or is agreed to in the transfer ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary or adversely affect the ability of the Company to obtain make interest and principal payments with respect to the Notes or maintain a financing of that type(C) pursuant to Interest Rate Protection Agreements; or
(79) set forth in required pursuant to this Indenture, the Guarantees or any Collateral Document.
Appears in 1 contract
Samples: Indenture (J2 Global, Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company WCI will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company WCI or any other Restricted Subsidiary,;
(2ii) pay any Indebtedness owed to WCI or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary;
(iii) make loans or advances to the Company WCI or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary, ; or
(3iv) transfer any of its property or assets to the Company WCI or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to prohibit any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements agreement in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided provided, however, that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by WCI or any Restricted Subsidiary, at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of WCI or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company WCI or any Restricted Subsidiary subject in any manner material to WCI or any Restricted Subsidiary; or
(v) with respect to a Lien permitted under this Indenture (but only to the extent that such restriction is Restricted Subsidiary and imposed by the instruments pursuant to which such Lienan agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary. Nothing contained in this Section 4.05 shall prevent WCI or any Restricted Subsidiary from (i) restricting the obligation secured thereby, is created) sale or (iii) that restrict the transfer other disposition of property or assets of the Company WCI or any of its Restricted Subsidiary Subsidiaries that is subject secure Indebtedness of WCI or any of its Restricted Subsidiaries or (ii) creating, incurring, assuming or suffering to a merger agreement, stock or asset purchase agreement or similar agreement, so long as exist any such transfer is Liens otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSection 4.09.
Appears in 1 contract
Samples: Guaranteed Senior Secured Notes Indenture (Winstar Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except So long as provided in Section 4.09(b)any of the Securities are outstanding, the Company Holdings will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests capital stock of such Restricted Subsidiary owned by the Company Holdings or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to Holdings or any other Restricted Subsidiary, (iii) make loans or advances to the Company Holdings or any other Restricted SubsidiarySubsidiary or (iv) transfer, or
(3) transfer subject to certain exceptions, any of its property or assets to the Company Holdings or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a) do . This covenant shall not apply to restrict or prohibit any encumbrances or restrictionsrestrictions existing:
(1i) existing on in the Issue Date in this IndentureSilgan Credit Agreement, the GuaranteesSilgan Notes, the Collateral Documents Discount Debentures (including any agreement pursuant to which the Silgan Notes or the Discount Debentures were issued) or any other agreements in effect on the Issue Datedate hereof, and any including extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingthereof; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) under or by reason of applicable law, rule or regulation (including, without limitation, applicable currency control laws and applicable state corporate statutes restricting the payment of dividends in certain circumstances);
(iii) with respect to any Person or the property or assets of such Person acquired by Holdings or any Restricted Subsidiary and existing at the time of such acquisition, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.5, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset, (B) by virtue of any transfer of, agreement to a lease transfer, option or license right with respect to, or Lien on, any property or assets of Holdings or any Restricted Subsidiary not otherwise prohibited by this Indenture or (but only C) arising or agreed to in the extent ordinary course of business and that do not, individually or in the aggregate, detract from the value of the property or assets of Holdings or any Restricted Subsidiary in any manner material to Holdings or such restriction is Restricted Subsidiary; or
(v) with respect to any Restricted Subsidiary and imposed by the instruments pursuant to which an agreement that has been entered into for the sale or disposition of all or substantially all of the capital stock of, or property and assets of, such lease Restricted Subsidiary. Nothing contained in this Section 4.5 shall prevent Holdings or license is created), (ii) that restrict any Restricted Subsidiary from restricting the transfer sale or other disposition of property or assets of the Company Holdings or any Restricted Subsidiary subject to a Lien permitted under this Indenture (but only to the extent of its Subsidiaries that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer secure Indebtedness of property or assets of the Company Holdings or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral Documentits Subsidiaries.
Appears in 1 contract
Samples: Indenture (Silgan Holdings Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b)Following the occurrence of the Termination and Release, the Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The provisions of Section 4.09(a) do foregoing provision shall not apply to restrict or prohibit any encumbrances or restrictions:
: (1i) existing on the Issue Date in pursuant to: (A) this Indenture, the Guarantees, the Collateral Documents Securities or any other agreements in effect on the Issue Date, date of the Termination and Release or in any Indebtedness containing any such encumbrance or restriction that is permitted pursuant to clause (iv) below or in any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, renewed or replaced or (B) any agreement which imposes such encumbrances or restrictions on Persons other than Palm Shipping or any Subsidiary of Palm Shipping; 72 81 (ii) existing under any other agreement providing for the Incurrence of Indebtedness of any Restricted Subsidiary (other than Palm Shipping) that is permitted to be Incurred by Section 5.03; provided that the encumbrances and restrictions in any such agreement or in any extensions, refinancings, renewals or replacements of such agreement are no less favorable in any material respect to the Holders than those encumbrances and restrictions existing as of the date of the Termination and Release and permitted pursuant to clause (i) of this paragraph; (iii) existing under and by reason of applicable law; (iv) existing with respect to any Person or the property or assets of such Person (other than Palm Shipping) acquired by the Company or any Restricted Subsidiary and existing at the time of such acquisition, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired or any extensions, refinancings, renewals or replacements of the foregoing; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and are being extended, refinanced;
, renewed or replaced; (5v) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 5.04, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company and its Restricted Subsidiaries; or (vi) with respect to a Lien permitted under this Indenture Restricted Subsidiary (but only to the extent that such restriction is other than Palm Shipping), imposed by the instruments pursuant to which such Lienan agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or all, or substantially all, of the obligation secured therebyproperty and assets of, is createdsuch Restricted Subsidiary. Nothing contained in this Section 5.04 shall prevent the Company or any Restricted Subsidiary from (1) entering into any agreement permitting or providing for the incurrence of Liens otherwise permitted in Section 5.02, (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt secure Indebtedness (other than Trade Obligationsthe Securities) otherwise permitted of the Company or any of its Restricted Subsidiaries or (3) amending, modifying 73 82 or supplementing any charter or similar arrangement between Palm Shipping and a vessel-owning Subsidiary of the Company (other than the Charters) solely (A) to lower the rates paid by Palm Shipping to such vessel-owning Subsidiary under this Indenturesuch charter or similar arrangement or (B) to increase the rates paid by Palm Shipping to such vessel-owning Subsidiary under such charter or similar arrangement to the extent required to service (x) Indebtedness for money borrowed, if Incurred in good faith (as determined by the Board of Directors) and not with the purpose of evading the requirements of this covenant, in connection with the financing or the refinancing of Indebtedness of such Subsidiary and (y) expenses incurred by such Subsidiary in the reasonable judgment ordinary course of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral Documentbusiness.
Appears in 1 contract
Samples: Indenture (Teekay Shipping Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (3) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, replacements taken as a whole, whole are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(52) existing under or by reason of applicable law;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(4) in the case of clause (4) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.06:
(iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset,
(B) existing by virtue of any transfer of, agreement to a lease transfer, option or license right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or
(but only C) arising or agreed to in the extent ordinary course of business, not relating to any Indebtedness, and that such restriction is imposed by do not, individually or in the instruments pursuant to which such lease or license is created)aggregate, (ii) that restrict detract from the transfer value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(5) with respect to a Lien permitted Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) existing under this Indenture (but or by reason of any Indebtedness or other contractual requirement in connection with a Qualified Securitization Transaction; provided that such restrictions apply only to the extent Securitization Entity or other Restricted Subsidiary that is a party to such restriction is imposed by Qualified Securitization Transaction; or
(7) contained in Indebtedness permitted to be Incurred subsequent to the instruments Closing Date pursuant to which Section 4.03 herein; provided that any such Lienencumbrances or restrictions are ordinary or customary with respect to the type of Indebtedness Incurred (under the relevant circumstances) and that the Board of Directors or any financial officer of the Company determines that any such encumbrance or restriction shall not materially adversely affect the Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.06 shall prevent the Company or any Restricted Subsidiary from:
(1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 herein or
(2) restricting the obligation secured thereby, is created) sale or (iii) that restrict the transfer other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Ingram Micro Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
: (1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Closing Date, and any 53 44 extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinanced;
replaced; (5ii) existing under or by reason of applicable law; (iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; (v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary during the period between the execution of such agreement and the closing thereunder within three months of such execution; (but only vi) with respect to Restricted Subsidiaries in which, on and subsequent to the extent Closing Date, the Company and other Restricted Subsidiaries only make Investments that are evidenced by unsubordinated promissory notes that bear a reasonable rate of interest and are payable prior to the Stated Maturity of the Securities; provided that such restriction encumbrances and restrictions expressly allow the payment of interest and principal on such promissory notes; (vii) encumbrances or restrictions solely of the type referred to in clause (iii) or (iv) of the preceding paragraph that are contained in any stockholders' agreement, joint venture agreement or similar agreement among owners of Common Stock of a Restricted Subsidiary; provided that such restrictions consist solely of requirements that transactions between such Restricted Subsidiaries and affiliates thereof (including the Company and its Restricted Subsidiaries) be on fair and reasonable terms no less favorable to such Restricted Subsidiary than could be obtained in a comparable arm's-length transaction with a Person that is imposed by not such an affiliate; or (viii) contained in the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Securities than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Securities. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b4.09(b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2ii) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(iii) make loans or advances to the Company or any other Restricted Subsidiary, or
(3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a4.09(a) do not apply to any encumbrances or restrictions:
(1i) existing on the Issue Date in this Indentureagreements governing the U.S. Credit Facility, the GuaranteesIceland Credit Facility, the Collateral Documents this Indenture or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoingforegoing or of any subsequent extension, renewal, replacement or refinancing thereof; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially less favorable no more adverse in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental regulationlaw;
(4iii) existing existing
(A) with respect to any Person, or with respect to the any property or assets of any Personassets, at the time the Person is Person, property or assets are acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, which encumbrances or restrictions (x) are not applicable to any other Person or the property or assets of any other Person and (y) were not put in each case, place in anticipation of such event; and any extensions, renewals, replacements or refinancings of any of the foregoing, or of any subsequent extension, renewal, replacement or refinancing thereof, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable more adverse in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(5iv) of the type described in clause (a)(3Section 4.09(a)(iv) of this Section 4.09 arising or agreed to to
(A) in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease or license license,
(but only B) with respect to the extent that such restriction is imposed by the instruments pursuant to any assets comprising a Permitted Business in which such lease or license is created), (ii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary subject to a Lien permitted under this Indenture (but only has ownership of an undivided interest, pursuant to the extent agreements under which such interest is owned or maintained, including, without limitation, options, put and call arrangements, rights of first refusal and similar rights, provided that such restriction is imposed restrictions are consistent with the Company’s past practice, or
(C) by the instruments pursuant to which such Lienvirtue of any Permitted Lien on, or the obligation secured therebyagreement to transfer, is created) option or (iii) that restrict the transfer of similar right with respect to, any property or assets of of, the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of or property and assets of the Restricted Subsidiary that is subject permitted by this Indenture;
(vi) on the ability of Restricted Subsidiaries to a merger agreementconsummate transactions of the type described in Sections 4.09(a)(i), stock (ii), (iii) or asset purchase (iv) provided for by any credit agreement or similar agreement, so long as any such transfer is otherwise security document relating to Debt permitted to be incurred under this Indenture; provided that such restrictions are not more restrictive than the restrictions contained in this Indenture and such restriction is imposed only during or the period pending such disposition U.S. Credit Facility;
(so long as such restriction does not continue for more than a customary period for transactions of such typevii) required pursuant to Section 4.06(b)(ii);
(6viii) imposed on any Joint Venture pursuant to customary limitations contained in the terms constituent documents and agreements governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that typeJoint Venture; or
(7ix) set forth existing under any credit agreement or security document relating to Debt incurred pursuant to Sections 4.06(b)(ii), (b)(xi) or (b)(xii) or Permitted Refinancing Debt in respect thereof; provided that (a) such restrictions apply only to the Persons Incurring such Debt (including Guarantees thereof) and their Subsidiaries, (b) such Debt is not Guaranteed by the Company (except as permitted thereby) and (c) as determined in good faith by the Board of Directors of the Company, such encumbrances and restrictions would not, at the time agreed to, be expected to materially adversely affect the ability of the Company to make payments on the Notes.
(c) For purposes of determining compliance with this IndentureSection 4.09, the Guarantees subordination of loans or advances made to the Company or a Restricted Subsidiary to other Debt incurred by the Company or any Collateral Documentsuch Restricted Subsidiary shall not be deemed to encumber or restrict the ability to pay any Debt or other obligation owed to, or to make loans and advances to, the Company or a Restricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Century Aluminum Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b)clause (b) below, the Company Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on or in respect of any Equity Interests of such a Restricted Subsidiary owned by the Company Issuer or any other Restricted Subsidiary,
(2ii) pay any Debt or other obligation owed to the Issuer or any other Restricted Subsidiary,
(iii) make loans or advances to to, or Guarantee any Debt or other obligations of, or make any Investment in, the Company Issuer or any other Restricted Subsidiary, or
(3iv) transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(aclause (a) do not apply to any encumbrances or restrictions:
(1i) existing on the Issue Date in pursuant to this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Date, and any amendments, modifications, restatements, extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the amendment, modification, restatement, extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable good faith judgment of the Company) Issuer, no less favorable in any material respect to the Holders of the Notes than the encumbrances or restrictions being amended, modified, restated, extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law law, rule, regulation or governmental regulationorder;
(4iii) existing existing
(A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company Issuer or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, andwhich encumbrances or restrictions (i) are not applicable to any other Person or the property or assets of any other Person and (ii) were not put in place in anticipation of such event and any amendments, in each casemodifications, any restatements, extensions, renewals, replacements or refinancings of any of the foregoing, provided that the encumbrances and restrictions in the amendment, modification, restatement, extension, renewal, replacement or refinancing are, taken as a whole, in the good faith judgment of the Issuer, as the case may be, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment Holders of the Company) Notes than the encumbrances or restrictions being amended, modified, restated, extended, renewed, replaced or refinanced;
(5iv) of the type described in clause paragraph (a)(3a)(iv) of this Section 4.09 arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only similar contract, including with respect to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created)intellectual property, (ii) that restrict in a customary manner, pursuant to provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements, the transfer of property ownership interests in, or assets of the Company of, such partnership, limited liability company, joint venture or any Restricted Subsidiary subject to a Lien permitted under this Indenture similar Person (but only in each case relating solely to the extent that such restriction is imposed by the instruments pursuant to which such Lienrespective partnership, limited liability company, joint venture or the obligation secured thereby, is createdsimilar Person) or (iii) that restrict the transfer by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of, the Issuer or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Company Capital Stock of, or any property and assets of, the Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)by Section 4.13;
(6A) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in good faith by the reasonable judgment of the CompanyIssuer) (i) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain ordinary and customary for a financing of that typetype and (ii) the encumbrances or restrictions either (x) would not, at the time agreed to, be expected to materially adversely affect the ability of the Issuer or any Guarantor to make payments on the Notes or (y) in the case of any Permitted Refinancing Debt, are, taken as a whole, no less favorable in any material respect to the Holders of the Notes than those contained in the agreements governing the Debt being refinanced; or
(7B) set forth in required pursuant to this Indenture, the Guarantees Notes or any Collateral DocumentNote Guarantee.
Appears in 1 contract
Samples: Indenture (GeoPark LTD)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,;
(2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary, or
; or 55 62 (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a4.07(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Date in the New Credit Facility, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause Section 4.07(a), (a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)Subsidiary;
(6v) contained with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary, pending such sale or disposition;
(vi) existing under purchase money obligations for property acquired in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment ordinary course of business that impose restrictions of the Companynature discussed in clause (iv) above on the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; orproperty so acquired;
(7vii) set forth in this Indenture, the Guarantees existing under applicable law or any Collateral Document.applicable rule, regulation or order; 56 63 (viii) contracts for the sale of assets, including, without limitation, customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary;
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary (other than a Receivables Subsidiary) to:
(1) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,Subsidiary (it being understood that the priority of any preferred stock in receiving dividends or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make loans or advances to the Company or any other Restricted Subsidiary, Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) repay any Indebtedness owed to the Company or any other Restricted Subsidiary or transfer any of its property or assets to the Company or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clauses (1) or (2) above or in this clause (3)).
(b) The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on the Issue Closing Date in this the Credit Agreement, the Indenture, the Guarantees, the Collateral Documents Existing Note Indentures or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, replacements taken as a whole, whole are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulationany applicable rule, regulation or order;
(3) that are customary non-assignment provisions in contracts, agreements, leases, permits and licenses;
(4) that are purchase money obligations for property acquired and Capitalized Lease Obligations that impose restrictions on the property purchased or leased;
(5) existing (A) with respect to any Person, Person or to the property or assets of any Person, at the time the such Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or (B) with respect to any Unrestricted Subsidiary existing at the time it is designated of such acquisition and not incurred in contemplation thereof, which encumbrances or is deemed restrictions are not applicable to become a Restricted Subsidiary, and, in each case, any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, thereof; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing are, replacements taken as a whole, whole are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(56) in the case of clause (3) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.08:
(iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset,
(B) existing by virtue of any transfer of, agreement to a lease transfer, option or license (but only to right with respect to, or Lien on, any property or assets of the extent that such restriction is imposed Company or any Restricted Subsidiary not otherwise prohibited by the instruments pursuant Indenture,
(C) arising or agreed to which such lease in the normal course of business, not relating to any Indebtedness, and that do not, individually or license is created)in the aggregate, (ii) that restrict detract from the transfer value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(7) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(but only 8) relating to a Subsidiary Guarantor and contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such Lien, Indebtedness was issued if:
(A) the encumbrance or restriction is not materially more disadvantageous to the obligation secured thereby, Holders of the Notes than is createdcustomary in comparable financings (as determined by the Company in good faith); and
(B) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes;
(9) arising from customary provisions in joint venture agreements and other similar agreements;
(10) existing in the documentation governing any Permitted Securitization or Permitted Factoring Program;
(11) contained in any agreement governing Indebtedness permitted under (A) clause (8) of the second paragraph of Section 4.09(a); or (iiiB) Section 4.09; provided that restrict with respect to this sub-clause (B), such encumbrances and restrictions contained in any agreement or instrument will not materially affect the transfer Company’s ability to make anticipated principal or interest payments on the Notes (as determined by the chief financial officer of the Company);.
(12) existing under or by reason of any Investment not prohibited by the Section 4.07 and any Permitted Investment; or
(13) of the type referred to in the first paragraph of this covenant imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (12) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuers, not materially more restrictive as a whole with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing. Nothing contained in this Section 4.08 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.12 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company WCI will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company WCI or any other Restricted Subsidiary,;
(2ii) pay any Indebtedness owed to WCI or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary;
(iii) make loans or advances to the Company WCI or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary, ; or
(3iv) transfer any of its property or assets to the Company WCI or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to prohibit any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Agreement or any other agreements agreement in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided provided, however, that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by WCI or any Restricted Subsidiary, at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 6.03, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of WCI or any Restricted Subsidiary not otherwise prohibited by this Agreement or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company WCI or any Restricted Subsidiary subject in any manner material to WCI or any Restricted Subsidiary; or
(v) with respect to a Lien permitted under this Indenture (but only to the extent that such restriction is Restricted Subsidiary and imposed by the instruments pursuant to which such Lienan agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary. Nothing contained in this Section 6.03 shall prevent WCI or any Restricted Subsidiary from (i) restricting the obligation secured thereby, is created) sale or (iii) that restrict the transfer other disposition of property or assets of the Company WCI or any of its Restricted Subsidiary Subsidiaries that is subject secure Indebtedness of WCI or any of its Restricted Subsidiaries or (ii) creating, incurring, assuming or suffering to a merger agreement, stock or asset purchase agreement or similar agreement, so long as exist any such transfer is Liens otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSection 6.07.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Euro Notes Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided PROVIDED that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or 41 agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes; or
(vii) imposed in connection with a transaction described in clause (f) of the proviso to the definition of "Asset Sale" and relating solely to a Restricted Subsidiary that transfers assets to the special purpose entity referred to therein; PROVIDED that the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 hereof or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this the Credit Agreement, the Vendor Financing Arrangement, the 15% Indenture, the Guarantees, the Collateral Documents this Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.07, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, 49 individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.07 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.05 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Pagemart Wireless Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (ai) Except as provided in Section 4.09(b)below, the Company Parent Guarantor will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit 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 on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company Parent Guarantor or any other Restricted Subsidiary,;
(2) pay any Indebtedness owed to the Parent Guarantor or any other Restricted Subsidiary;
(3) make loans or advances to the Company Parent Guarantor or any other Restricted Subsidiary, ; or
(34) sell, lease or transfer any of its property or assets to the Company Parent Guarantor or any other Restricted Subsidiary.
(bii) The provisions of clause (i) of this Section 4.09(a4.1(c) do not apply to any encumbrances or restrictions:
(1) existing on the Issue Date in this Indenture, the Guarantees, the Collateral Documents or any other agreements as in effect on the Original Issue Date, in the New Notes, the Note Guarantee, or this Indenture, and any extensions, renewalsrefinancings, supplements, amendments, renewals or replacements or refinancings of any of the foregoingforegoing agreements; provided that the encumbrances and restrictions in the any such extension, renewalrefinancing, replacement renewal or replacement, taken as a whole, are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, supplemented, amended, renewed or replaced;
(2) existing under or by reason of applicable law, rule, regulation, license, concession, approval, decree or order applicable to the relevant Restricted Subsidiary;
(3) resulting from restrictions on cash or other deposits or other customary requirements imposed by customers or suppliers under contracts entered into in the ordinary course of business;
(4) existing with respect to any Person or the property or assets of such Person, or relating to or existing under any Indebtedness or other obligations acquired or incurred by the Parent Guarantor or any Restricted Subsidiary, at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, supplements, amendments, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced supplemented, amended, renewed or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinancedreplaced;
(5) of that (x) otherwise would be prohibited by the type provision described in clause (a)(3i)(4) of this Section 4.09 arising 4.1(b) if they arise or are agreed to in the ordinary course of business business, (y)
(i) that restrict in a customary manner the chartering, subletting, assignment or other transfer of any property or asset that is subject to a lease or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created)license, (ii) that restrict exist by virtue of any Indebtedness, Lien, agreement to transfer, option or similar right with respect to any property or assets of the transfer Parent Guarantor or any Restricted Subsidiary not otherwise prohibited by this Indenture or (iii) do not relate to any Indebtedness, or (z) do not, individually or in the aggregate, detract from the value of property or assets of the Company Parent Guarantor or any Restricted Subsidiary subject to a Lien permitted under this Indenture (but only in any manner material to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Parent Guarantor and its Restricted Subsidiary that is subject to Subsidiaries taken as a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)whole;
(6) contained in any agreement pursuant to which Indebtedness not otherwise prohibited by this Indenture was Incurred; provided that the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined encumbrance or restriction applies only in the reasonable judgment event of the Company) the encumbrances or restrictions are necessary or required a default with respect to enable the Company or a covenant contained in such Restricted Subsidiary to obtain or maintain a financing of that typeIndebtedness; or
(7) set forth in this Indenture, the Guarantees imposed pursuant to an agreement that has been entered into for a sale or any Collateral Documentdisposition that is permitted by Section 4.1(g).
Appears in 1 contract
Samples: Indenture (Camposol Holding PLC)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
: (1i) existing on the Issue Closing Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any modifications, extensions, refinancings, renewals, substitutions or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such modifications, renewalextensions, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensionsrefinancings, renewals, substitutions or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being modified, extended, refinanced, renewed, replaced substituted or refinanced;
replaced; (5ii) existing under or by reason of applicable law; (iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.11, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; (v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or (but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.11 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Foodmaker Inc /De/)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary (other than a Receivables Subsidiary) to:
(1) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,Subsidiary (it being understood that the priority of any preferred stock in receiving dividends or liquidating distributions prior to the dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(2) make loans or advances to the Company or any other Restricted Subsidiary, Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) repay any Indebtedness owed to the Company or any other Restricted Subsidiary or transfer any of its property or assets to the Company or any other Restricted SubsidiarySubsidiary (it being understood that such transfers shall not include any type of transfer described in clauses (1) or (2) above or in this clause (3)).
(b) The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on the Issue Closing Date in this the Credit Agreement, the Indenture, the Guarantees, the Collateral Documents Existing Notes Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, replacements taken as a whole, whole are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulationany applicable rule, regulation or order;
(3) that are customary non-assignment provisions in contracts, agreements, leases, permits and licenses;
(4) that are purchase money obligations for property acquired and Capitalized Lease Obligations that impose restrictions on the property purchased or leased;
(5) existing (A) with respect to any Person, Person or to the property or assets of any Person, at the time the such Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or (B) with respect to any Unrestricted Subsidiary existing at the time it is designated of such acquisition and not incurred in contemplation thereof, which encumbrances or is deemed restrictions are not applicable to become a Restricted Subsidiary, and, in each case, any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, thereof; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing are, replacements taken as a whole, whole are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(56) in the case of clause (3) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.08:
(iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset,
(B) existing by virtue of any transfer of, agreement to a lease transfer, option or license (but only to right with respect to, or Lien on, any property or assets of the extent that such restriction is imposed Company or any Restricted Subsidiary not otherwise prohibited by the instruments pursuant Indenture,
(C) arising or agreed to which such lease in the normal course of business, not relating to any Indebtedness, and that do not, individually or license is created)in the aggregate, (ii) that restrict detract from the transfer value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; or
(D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(7) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(but only 8) relating to a Subsidiary Guarantor and contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if:
(A) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company in good faith); and
(B) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes;
(9) arising from customary provisions in joint venture agreements and other similar agreements;
(10) existing in the documentation governing any Permitted Securitization or Permitted Factoring Program; or;
(11) contained in any agreement governing Indebtedness permitted under clause (8) of the second paragraph of part (a) of Section 4.09. Nothing contained in this Section 4.08 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or the obligation secured thereby, is created) suffering to exist any Liens otherwise permitted in Section 4.12 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
: (1i) existing on the Issue Closing Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any modifications, extensions, refinancings, renewals, substitutions or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such modifications, renewalextensions, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensionsrefinancings, renewals, substitutions or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being modified, extended, refinanced, renewed, replaced substituted or refinanced;
replaced; (5ii) existing under or by reason of applicable law; (iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; (v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or (but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
: (1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinanced;
replaced; (5ii) existing under or by reason of applicable law, rule or regulation or, to the extent not material to the Company, at the behest of regulatory authorities; (iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.04, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; (v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; (but only vi) with respect 45 39 to Restricted Subsidiaries in which, on and subsequent to the extent Closing Date, the Company and its Restricted Subsidiaries only make Investments that are evidenced by unsubordinated promissory notes that bear a reasonable rate of interest and are payable prior to the Stated Maturity of the Notes; provided that such restriction encumbrances and restrictions expressly allow the payment of interest and principal on such promissory notes; (vii) solely of the type referred to in clause (iii) or (iv) of the first paragraph of this Section 4.04 that are contained in any stockholders' agreement, joint venture agreement or similar agreement among owners of Common Stock of a Restricted Subsidiary; provided that such restrictions consist solely of requirements that transactions between such Restricted Subsidiaries and Affiliates thereof (including the Company and its Restricted Subsidiaries) be on fair and reasonable terms no less favorable to such Restricted Subsidiary than could be obtained in a comparable arm's-length transaction with a Person that is imposed by not such an Affiliate; or (viii) contained in the instruments terms of any Indebtedness or any agreement pursuant to which such Lien, Indebtedness was issued if the Board of Directors of the Company determines that such encumbrance or restriction together with encumbrances and restrictions of any other Indebtedness will not materially affect the obligation secured thereby, is created) Company's ability to make interest or principal payments on the Notes; or (iiiix) contained in the agreement pertaining to the Proposed ING Credit Facility, provided that restrict the transfer terms thereof are not materially more restrictive than those set forth on the offer letter from ING Barings dated July 24, 1997, including the Term Sheet attached thereto. Nothing contained in this Section 4.04 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.08 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company Lodgian will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company Lodgian or any other Restricted Subsidiary,
, (2) pay any Indebtedness owed to Lodgian or any other Restricted Subsidiary, (3) make loans or advances to the Company Lodgian or any other Restricted Subsidiary, or
Subsidiary or (34) transfer any of its property or assets to the Company Lodgian or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on the Issue Closing Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, replacements taken as a whole, whole are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(52) existing under or by reason of applicable law;
(3) with respect to any Person or the property or assets of such Person acquired by Lodgian or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(4) in the case of clause (4) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.06, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of Lodgian or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company Lodgian or any Restricted Subsidiary subject in any manner material to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company Lodgian or any Restricted Subsidiary that is subject Subsidiary;
(5) with respect to a merger agreementRestricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, stock or asset purchase agreement or similar agreementproperty and assets of, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)Restricted Subsidiary;
(6) contained in the terms governing of any Debt Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(other A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement,
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than Trade Obligations) otherwise permitted under this Indenture, if is customary in comparable financings (as determined by Lodgian in the reasonable judgment of good faith) and
(C) Lodgian determines that any such encumbrance or restriction will not materially affect the Company) 's ability to make principal or interest payments on the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that typeNotes; or
(7) set forth relating to a Subsidiary Guarantor and contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by Lodgian in good faith) and
(B) Lodgian determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Indenture, the Guarantees Section 4.06 shall prevent Lodgian or any Collateral DocumentRestricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.10 or (2) restricting the sale or other disposition of property or assets of Lodgian or any of its Restricted Subsidiaries that secure Indebtedness of Lodgian or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,;
(2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary;
(iii) make loans or advances to the Company or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary, ; or
(3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to prohibit any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements agreement in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided provided, however, that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; or
(v) with respect to a Lien permitted under this Indenture (but only to the extent that such restriction is Restricted Subsidiary and imposed by the instruments pursuant to which such Lienan agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary. Nothing contained in this Section 4.05 shall prevent the obligation secured thereby, is createdCompany or any Restricted Subsidiary from (i) restricting the sale or (iii) that restrict the transfer other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject secure Indebtedness of the Company or any of its Restricted Subsidiaries or (ii) creating, incurring, assuming or suffering to a merger agreement, stock or asset purchase agreement or similar agreement, so long as exist any such transfer is Liens otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSection 4.09.
Appears in 1 contract
Samples: Senior Deferred Interest Notes Indenture (Winstar Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company The Guarantor will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company Guarantor or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Guarantor or any other Restricted Subsidiary, make loans or advances to the Company Guarantor or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company Guarantor or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or of restrictions:
: (1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Lenders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinanced;
replaced; (5ii) existing under or by reason of applicable law; (iii) existing with respect to any Person or the property or assets of such Person acquired by the Guarantor or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 Subsection 1l(b)(3) (A) that restrict in a customary manner the subletting, assignment or transfer of any property of asset that is a lease, license, conveyance or contract or similar property or asset, (B) 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 Guarantor or any Restricted Subsidiary not otherwise prohibited by this Guarantee or (C) arising or agreed to in the ordinary course of business (i) business, not relating to any Indebtedness, and that restrict do not, individually or in a customary manner the charteringaggregate, subletting, assignment or transfer of any property or asset that is subject to a lease or license (but only to detract from the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created), (ii) that restrict the transfer value of property or assets of the Company Guarantor or any Restricted Subsidiary subject in any manner material to the Guarantor or any Restricted Subsidiary; (v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary during the period between the execution of such agreement and the closing thereunder, or (but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not more disadvantageous to the obligation secured therebyLenders than is customary in comparable financings (as determined in good faith by the Board of Directors) and (C) the Board of Directors determines that any such encumbrance or restriction will not adversely affect the Guarantor's financial ability to make principal or interest payments on the Term Loans when due. Nothing contained in this Subsection 11(b)(3) shall prevent the Guarantor or any Restricted Subsidiary from (1) creating, is createdincurring, assuming or suffering to exist any Liens otherwise permitted in Subsection 11(b)(7) or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company Guarantor or any of its Restricted Subsidiary Subsidiaries that is subject to secure, in a merger agreementmanner permitted by this Guarantee, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment Indebtedness of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees Guarantor or any Collateral Documentof its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Initial Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing; such agreements, provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, replacements taken as a whole, whole are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or replaced;
(2) existing under or by reason of applicable law;
(3) arising pursuant to the Credit Agreement;
(4) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired and any extensions, refinancings, renewals or replacements of thereof, provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole are no less favorable in and material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(5) in the case of the type described in clause (a)(3iv) of this Section 4.09 arising or agreed to in the ordinary course of business 4.05(a):
(iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset;
(B) existing by virtue of any transfer of, agreement to a lease transfer, option or license right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
(but only C) arising or agreed to in the extent ordinary course of business, not relating to any Indebtedness, and that such restriction is imposed by do not, individually or in the instruments pursuant to which such lease or license is created)aggregate, (ii) that restrict detract from the transfer value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(6) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(but only 7) relating to a Subsidiary Guarantor and contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if:
(A) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company in good faith), and
(B) the Company determines that any such encumbrance or restriction will not materially affect the obligation secured therebyCompany’s ability to make principal or interest payments on the Notes.
(c) Nothing contained in this Section 4.05 shall prevent the company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted by Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(bparagraph (b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(3) make loans or advances to the Company or any other Restricted Subsidiary, or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(aparagraph (a) do not apply to any encumbrances or restrictions:
(1) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Senior Secured Notes Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) LC Participants than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit FacilitiesFacilities (including pursuant to the Credit Documents);
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing existing
(A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, which encumbrances or restrictions (i) are not applicable to any other Person or the property or assets of any other Person and (ii) were not put in each case, place in anticipation of such event and any extensions, renewals, replacements or refinancings of any of the foregoing, ; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) LC Participants than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(5) of the type described in clause (a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is createda), (ii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary subject to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral Document.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (McDermott International Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company Parent will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit 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 to Parent or any Restricted Subsidiary:
(a) on its Capital Stock or
(b) with respect to any Equity Interests of such Restricted Subsidiary owned by the Company other interest or participation in, or measured by, its profits;
(2) repay any Indebtedness or any other Obligation owed to Parent or any Restricted Subsidiary,;
(23) make loans or advances or capital contributions to the Company Parent or any other Restricted Subsidiary, ; or
(34) transfer any of its property properties or assets to the Company Parent or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a) do not apply to any ; except for such encumbrances or restrictionsrestrictions existing under or by reason of:
(1) existing on the Issue Date in this Indenture, the Guarantees, the Collateral Documents or any other agreements Senior Credit Facility as in effect on the Issue Date, Date and any extensionsamendments, restatements, renewals, replacements or refinancings of any of the foregoingthereof; provided that the encumbrances and restrictions in the extensionany amendment, restatement, renewal, replacement or refinancing, taken as a whole, are refinancing is not materially less favorable more disadvantageous to the Noteholders (as determined Holders in the reasonable judgment of the Company) than the any material respect with respect to such encumbrances or restrictions being extended, renewed, replaced or refinancedthan those existing on the Issue Date;
(2) encumbrances or restrictions existing on the Issue Date to the extent and in the Credit Facilitiesmanner such encumbrances and restrictions are in effect on the Issue Date and any amendments, restatements, renewals, replacements or refinancings thereof; provided that any amendment, restatement, renewal, replacement or refinancing is not more disadvantageous to the Holders in any material respect with respect to such encumbrances or restrictions than those existing on the Issue Date;
(3) existing under or by reason of applicable law or governmental regulationthis Indenture, the Notes and the Guarantees;
(4) existing applicable law;
(A5) with respect any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or to the property properties or assets of any Person, at other than the time Person, or the property or assets of the Person is acquired by (including any Subsidiary of the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisitionPerson), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinancedso acquired;
(56) of the type described customary non-assignment provisions in clause (a)(3) of this Section 4.09 arising leases, licenses or agreed to other agreements entered in the ordinary course of business and consistent with past practices;
(i7) Refinancing Indebtedness; provided that restrict such restrictions are no more restrictive in any material respect than those contained in the agreements governing the Indebtedness being refunded, refinanced or extended;
(8) customary restrictions in security agreements or mortgages securing Indebtedness of Parent or a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease or license (but only Restricted Subsidiary to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created), (ii) that restrictions restrict the transfer of the property subject to such security agreements and mortgages;
(9) customary restrictions with respect to a Restricted Subsidiary (other than any Issuer) pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of the Company or any such Restricted Subsidiary subject to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or other than any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such typeIssuer);
(610) contained in customary restrictions imposed on the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment transfer of the Company) the encumbrances copyrighted or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that typepatented materials; or
(711) set forth customary restrictions under Sale and Lease-Back Transactions that comply with Section 4.15 and that either (i) apply to the assets being transferred only, or (ii) apply only to the Guarantor or Issuer that is the subject of such Sale and Lease-Back Transaction and Parent determines in this Indenturegood faith at the time such encumbrance or restriction is created that such encumbrance or restriction does not materially and adversely affect the Issuers’ ability to pay principal of, and interest on, the Guarantees or any Collateral DocumentNotes.
Appears in 1 contract
Samples: Indenture (3055854 Nova Scotia Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
: (1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinanced;
replaced; (5ii) existing under or by reason of applicable law; (iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary and existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; (v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or (but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement; provided that in the case of the Credit Agreement the encumbrance or restriction may apply if an event of default (other than an event of default resulting solely from the breach of a representation or warranty) occurs and is continuing under the Credit Agreement; provided that, with respect to any event of default (other than a payment default, a bankruptcy event with respect to the Company, Interstate FiberNet, Inc. or any Significant Subsidiary or the obligation secured therebyloss of a material license or fiber network) under the Credit Agreement, such encumbrance or restriction may not prohibit dividends to the Company to pay scheduled interest on the Notes for more than 180 days in any consecutive 360-day period, (B) the encumbrance or restriction is creatednot materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Itc Deltacom Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in the New Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any amendments, extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided PROVIDED that the encumbrances and restrictions in the extensionany such amendments, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness of a Restricted Subsidiary, or any agreement pursuant to which such LienIndebtedness was issued, if the encumbrance or restriction applies only in the obligation secured therebyevent of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, if the encumbrance or restriction is creatednot materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company) and if the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual 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 any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,;
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3) make loans or advances to the Company or any other Restricted Subsidiary, ; or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Closing Date, and any amendments, modifications, extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided provided, however, that the encumbrances and restrictions in the extensionany such amendments, renewalmodifications, replacement extensions, refinancings, renewals or refinancingreplacements, taken as a whole, are not materially less favorable to the Noteholders more restrictive (as determined in the reasonable judgment of by the Company) than the those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulationrequired by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
(43) existing (A) with respect to any Person, Person or to the property or assets of any Person, at the time the such Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or (B) with respect to any Unrestricted Subsidiary existing at the time it is designated of such acquisition and not incurred in contemplation thereof, which encumbrances or is deemed restrictions are not applicable to become a Restricted Subsidiaryany Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, andand any amendments, in each casemodifications, any extensions, renewalsrefinancings, renewals or replacements of such encumbrances or refinancings of any of the foregoingrestrictions; provided, provided however, that the encumbrances and restrictions in the extensionany such amendments, renewalmodifications, replacement extensions, renewals or refinancing arereplacements, taken as a whole, no less favorable in any material respect to the Noteholders are not materially more restrictive (as determined in the reasonable judgment of by the Company) than the those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(54) in the case of clause (4) of the type described in clause Section 4.05(a):
(a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset;
(B) existing by virtue of any transfer of, agreement to a lease transfer, option or license (but only to right with respect to, or Lien on any of the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created), (ii) that restrict the transfer of property or assets of the Company or any a Restricted Subsidiary subject not otherwise prohibited by this Indenture; or
(C) arising or agreed to a Lien permitted under this Indenture (but only in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the extent that such restriction is imposed by aggregate, reduce the instruments pursuant to which such Lien, or value of the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any a Restricted Subsidiary that is subject in any manner material to the Company or such Restricted Subsidiary;
(5) with respect to a merger agreementRestricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, stock or asset purchase agreement or similar agreementproperty and assets of, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)Restricted Subsidiary;
(6) contained in the terms governing of any Debt Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(other than Trade ObligationsA) otherwise permitted under this Indenture, if the encumbrance or restriction either:
(as determined i) applies only in the reasonable judgment event of the Company) the encumbrances a payment default or restrictions are necessary non-compliance with respect to a financial covenant contained in such Indebtedness or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that typeagreement; or
(ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes;
(7) set forth arising from customary provisions in joint venture agreements and other agreements entered into in the ordinary course of business;
(8) pursuant to the Notes and the Subsidiary Guarantees and any Exchange Notes and Subsidiary Guarantees exchanged therefor or for Additional Notes and the related Subsidiary Guarantees to be issued pursuant to the Indenture and the Registration Rights Agreement;
(9) imposed on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(10) imposed in connection with purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature specified in clause (4) above on the property so acquired;
(11) contained in the terms of any Indebtedness of any Restricted Subsidiary that is Incurred as permitted pursuant to Section 4.03;
(12) imposed in connection with any Investment not prohibited by Section 4.04 and or in connection with any Permitted Investment; or
(13) contained in the terms of any Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.08 that limit the right of the debtor to dispose of the assets securing such Secured Indebtedness.
(c) Nothing contained in this Indenture, Section 4.05 shall prevent the Guarantees Company or any Collateral DocumentRestricted Subsidiary from:
(1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted under Section 4.08; or
(2) restricting the sale or other disposition of the Company’s property or assets or the property or assets of any of its Restricted Subsidiaries that secure the Company’s Indebtedness or the Indebtedness of any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (PAETEC Holding Corp.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company Parent will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of Parent to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company Parent or any other Restricted Subsidiary,;
(2ii) pay any indebtedness owed to Parent or any other Restricted Subsidiary;
(iii) make loans or advances to the Company Parent or any other Restricted Subsidiary, ; or
(3iv) transfer any of its property or assets to the Company Parent or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this IndentureAgreement, the Guarantees, the Collateral other Loan Documents or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancingreplacements, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders Lenders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if the encumbrance or restriction applies only in the event of a payment default or default with respect to a financial covenant contained in such Indebtedness or agreement and such encumbrance or restriction is not materially more disadvantageous to the Lenders than is customary in comparable financings (as determined by Parent) and Parent determines that any such encumbrance or restriction will not materially affect the Borrower’s ability to make principal or interest payments on the Loans;
(iii) existing under or by reason of applicable law;
(iv) existing with respect to any Person or the property or assets of such Person acquired by Parent or any Restricted Subsidiary of Parent, existing at the time of such acquisition and not incurred in the reasonable judgment of the Company) than the contemplation thereof, which encumbrances or restrictions being extendedare not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired and as the same may be amended, modified, restated, renewed, supplemented, refunded, replaced or refinanced; provided that such amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings, taken as a whole, are no less favorable in any material respect to the Lenders than those encumbrances or restrictions that are then in effect and that are being so amended, modified, restated, renewed, supplemented, refunded, replaced or refinanced;
(5v) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 6.4,
(iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is, or is subject to, a lease, purchase mortgage obligation, construction financing agreement, license, conveyance or contract or similar property or asset, including, without limitation, customary non-assignment provisions in leases, Purchase Money Obligations and other similar agreements, in each case with respect to the property or assets subject thereto,
(B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of Parent or any Restricted Subsidiary of Parent not otherwise prohibited by this Agreement, or
(C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of Parent or any Restricted Subsidiary of Parent in any manner material to Parent or any Restricted Subsidiary;
(vi) with respect to a lease Restricted Subsidiary of Parent and imposed pursuant to an agreement that has been entered into for the sale or license disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary of Parent; or
(but only to the extent that such restriction is vii) imposed by the instruments pursuant to which such lease or license is created), (ii) customary provisions in joint venture agreements and similar agreements that restrict the transfer of property or assets of the Company interest in the joint venture. Nothing contained in this Section 6.4 shall prevent Parent or any Restricted Subsidiary subject of Parent from (1) creating, incurring, assuming or suffering to a Lien exist any Liens otherwise permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) in Section 6.7 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company Parent or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees Parent or any Collateral Documentof its Restricted Subsidiaries.
Appears in 1 contract
Samples: Term Loan Agreement (Primus Telecommunications Group Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(bparagraph (b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2ii) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(iii) make loans or advances to the Company or any other Restricted Subsidiary, or
(3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(aparagraph (a) do not apply to any encumbrances or restrictions:
(1i) existing on the Issue Date in this the Credit Agreement, the Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental regulationlaw;
(4iii) existing existing
(A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, which encumbrances or restrictions (1) are not applicable to any other Person or the property or assets of any other Person and (2) were not put in each case, place in anticipation of such event and any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(5iv) of the type described in clause (a)(3a)(iv) of this Section 4.09 arising or agreed to in the ordinary course of business (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease or license or (but only B) by virtue of any Lien on, or agreement to the extent that such restriction is imposed by the instruments pursuant transfer, option or similar right with respect to which such lease or license is created), (ii) that restrict the transfer of any property or assets of of, the Company or any Restricted Subsidiary subject Subsidiary;
(v) with respect to a Lien permitted under this Indenture (but only to the extent that such restriction is Restricted Subsidiary and imposed by the instruments pursuant to which such Lienan agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)by Section 4.13;
(6vi) contained in the terms governing any Debt (other Permitted Refinancing Debt, which terms are, taken as a whole, no less favorable in any material respect to the Noteholders than Trade Obligations) otherwise permitted under this Indenture, if (as determined those contained in the reasonable judgment of agreements governing the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; Debt being refinanced, or
(7vii) set forth in this required pursuant to the Indenture, the Guarantees or any Collateral Document.
Appears in 1 contract
Samples: Note (Neenah Foundry Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) make loans or advances pay any Indebtedness owed to the Company or any other Restricted Subsidiary, or
(3iii) make loans or 43 advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements agreement in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.06, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(vi) with respect to any Development Company, imposed pursuant to or in connection with any Indebtedness Incurred by such Development Company to finance at least 50% of the total financing required for the development and construction of all of such Development Company's alternative access networks or any Indebtedness Incurred to refinance or replace such Indebtedness; provided that (a) such Indebtedness (including such refinancing Indebtedness) is permitted to be Incurred under this Indenture Section 4.03, (but b) such encumbrances and restrictions are no more restrictive in any material respect than those encumbrances and restrictions existing under the Tomen Facility as in effect on the Closing Date and (c) such encumbrances and restrictions shall only apply to such Development Company for so long as such Indebtedness (or such refinancing Indebtedness) remains outstanding; or 44
(vii) with respect to any Development Company (a "Restricted Development Company"), imposed pursuant to or in connection with any Indebtedness Incurred by another Development Company to finance at least 50% of the total financing required for the development and construction of all of such other Development Company's alternative access networks or any Indebtedness Incurred to refinance or replace such Indebtedness; provided that (a) such encumbrances and restrictions shall not apply to such Restricted Development Company prior to the extent that occurrence of an event of default under such restriction Indebtedness (or refinancing Indebtedness), (b) such Indebtedness (including such refinancing Indebtedness) is imposed permitted to be Incurred under Section 4.03, (c) such encumbrances and restrictions are no more restrictive in any material respect than those contemplated by the instruments pursuant Tomen Facility as in effect on the Closing Date and (d) at least 50% of the total financing required for the development and construction of all of such Restricted Development Company's alternative access networks was provided by the holder of the Indebtedness of such other Development Company. Nothing contained in this Section 4.06 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to which such Lien, or the obligation secured thereby, is created) exist any Liens otherwise permitted in Section 4.10 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
: (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
; (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary; (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
; or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
: (1i) existing on the Issue Closing Date in this Indenturethe Credit Facility, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided PROVIDED that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, taken as a whole, replacements are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinanced;
replaced; (2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental regulation;
by order of any Gaming Authority; (4iii) existing (A) with respect to any Person, Person or to the property or assets of any Person, at the time the such Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or (B) with respect to any Unrestricted Subsidiary existing at the time it is designated or is deemed to become a Restricted Subsidiaryof such acquisition and not incurred in contemplation thereof, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the which encumbrances or restrictions being extended, renewed, replaced are not applicable to any Person or refinanced;
the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (5iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.09, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue of any transfer of, agreement to a lease transfer, option or license (but only to right with respect to, or Lien on, any property or assets of the extent that such restriction is imposed Company or any Restricted Subsidiary not otherwise prohibited by the instruments pursuant Indenture or (C) arising or agreed to which such lease in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or license is created)in the aggregate, (ii) that restrict detract from the transfer value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; (v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or (but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes). Nothing contained in this Section 4.09 shall prevent the Company or any Restricted Subsidiary from (1) creating, is createdincurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.14, (2) restricting the sale or (iii) that restrict the transfer other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain Subsidiaries or maintain a financing (3) distributing cash flow from Indiana Gaming Company L.P. in accordance with the provisions of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral Documentits partnership agreement.
Appears in 1 contract
Samples: Indenture (St Louis Gaming Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(bparagraph (b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit 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 on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary,
(3) make loans or advances to the Company or any other Restricted Subsidiary, Subsidiary or
(34) sell, lease or transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(aparagraph (a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on in the Issue Date in this Notes, the Subsidiary Guarantees, the Indenture, the GuaranteesSecurity Documents, or under any Permitted Priority Secured Indebtedness of the Collateral Documents Company or any other agreements in effect on the Issue DateSubsidiary Guarantor or Permitted Priority Subsidiary Guarantee of any Subsidiary Guarantor, and any extensions, refinancings, renewals, supplements, amendments or replacements or refinancings of any of the foregoingforegoing agreements; provided that the encumbrances and restrictions in the any such extension, refinancing, renewal, replacement supplement, amendment or refinancingreplacement, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed, replaced supplemented, amended or refinancedreplaced;
(52) existing under or by reason of applicable law;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancing, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extension, refinancing, renewal or replacement, taken as a whole, are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(4) in the case of clause (4) of the type described in clause paragraph (a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business a), that (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, or (ii) exist by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by the Indenture or (iii) arise or are agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that typeSubsidiary; or
(75) set forth in this Indenturewith respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, the Guarantees or any Collateral Documentproperty and assets of, such Restricted Subsidiary that is permitted by Section 4.06, Section 4.11 and Section 4.15.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Dollar Notes Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided PROVIDED that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes; or
(vii) imposed in connection with a transaction described in clause (f) of the proviso to the definition of "Asset Sale" and relating solely to a Restricted Subsidiary that transfers assets to the special purpose entity referred to therein; PROVIDED that the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 hereof or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2ii) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(iii) make loans or advances to the Company or any other Restricted Subsidiary, or
(3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a) do not apply to any encumbrances or restrictions:
(1i) existing on the Issue Date in this Indentureagreements governing the U.S. Credit Facility, the GuaranteesIceland Credit Facility, the Collateral Documents this Indenture or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoingforegoing or of any subsequent extension, renewal, replacement or refinancing thereof; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially less favorable no more adverse in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental regulationlaw;
(4iii) existing existing
(A) with respect to any Person, or with respect to the any property or assets of any Personassets, at the time the Person is Person, property or assets are acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, which encumbrances or restrictions (x) are not applicable to any other Person or the property or assets of any other Person and (y) were not put in each case, place in anticipation of such event; and any extensions, renewals, replacements or refinancings of any of the foregoing, or of any subsequent extension, renewal, replacement or refinancing thereof, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable more adverse in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(5iv) of the type described in clause (a)(3Section 4.09(a)(iv) of this Section 4.09 arising or agreed to to
(A) in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease or license license,
(but only B) with respect to the extent that such restriction is imposed by the instruments pursuant to any assets comprising a Permitted Business in which such lease or license is created), (ii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary subject to a Lien permitted under this Indenture (but only has ownership of an undivided interest, pursuant to the extent agreements under which such interest is owned or maintained, including, without limitation, options, put and call arrangements, rights of first refusal and similar rights, provided that such restriction is imposed restrictions are consistent with the Company’s past practice, or
(C) by the instruments pursuant to which such Lienvirtue of any Permitted Lien on, or the obligation secured therebyagreement to transfer, is created) option or (iii) that restrict the transfer of similar right with respect to, any property or assets of of, the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of or property and assets of the Restricted Subsidiary that is subject permitted by this Indenture;
(vi) on the ability of Restricted Subsidiaries to a merger agreementconsummate transactions of the type described in Sections 4.09(a)(i), stock (ii), (iii) or asset purchase (iv) provided for by any credit agreement or similar agreement, so long as any such transfer is otherwise security document relating to Debt permitted to be incurred under this Indenture; provided that such restrictions are not more restrictive than the restrictions contained in this Indenture and such restriction is imposed only during or the period pending such disposition U.S. Credit Facility;
(so long as such restriction does not continue for more than a customary period for transactions of such typevii) required pursuant to Section 4.06(b)(iii);
(6viii) imposed on any Joint Venture pursuant to customary limitations contained in the terms constituent documents and agreements governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that typeJoint Venture; or
(7ix) set forth existing under any credit agreement or security document relating to Debt incurred pursuant to Sections 4.06(b)(ii), (b)(xi) or (b)(xii) or Permitted Refinancing Debt in respect thereof; provided that (a) such restrictions apply only to the Persons Incurring such Debt (including Guarantees thereof) and their Subsidiaries, (b) such Debt is not Guaranteed by the Company (except as permitted thereby) and (c) as determined in good faith by the Board of Directors of the Company, such encumbrances and restrictions would not, at the time agreed to, be expected to materially adversely affect the ability of the Company to make payments on the Notes.
(c) For purposes of determining compliance with this IndentureSection 4.09, the Guarantees subordination of loans or advances made to the Company or a Restricted Subsidiary to other Debt incurred by the Company or any Collateral Documentsuch Restricted Subsidiary shall not be deemed to encumber or restrict the ability to pay any Debt or other obligation owed to, or to make loans and advances to, the Company or a Restricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Century Aluminum Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company will The Borrower shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company Borrower or any other Restricted Subsidiary,;
(2ii) pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary;
(iii) make loans or advances to the Company Borrower or any other Restricted Subsidiary, ; or
(3iv) transfer any of its property or assets to the Company Borrower or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a9.4(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Date in this IndentureOctober 2, the Guarantees, the Collateral Documents 2012 or any other agreements in effect on the Issue DateOctober 2, 2012, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided provided, however, that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, taken as a whole, replacements are not materially no less favorable in any material respect to the Noteholders (as determined in Term Loan B Lenders or the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental regulationrequired by any regulatory authority having jurisdiction over the Borrower or any Restricted Subsidiary;
(4iii) existing (A) with respect to any PersonPerson or the property or assets of such Person acquired by the Borrower or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person, at Person other than such Person or the time the Person is acquired by the Company property or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation assets of such acquisition)Person so acquired, or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, and any extensions, renewalsrenewals or replacements of such encumbrances or restrictions; provided, replacements or refinancings of any of the foregoinghowever, provided that the encumbrances and restrictions in the extensionany such extensions, renewal, replacement renewals or refinancing are, taken as a whole, replacements are no less favorable in any material respect to the Noteholders (as determined in Term Loan B Lenders or the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced renewed or refinancedreplaced;
(5iv) in the case of clause (iv) of the type described in clause Section 9.4(a):
(a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset;
(B) existing by virtue of any transfer of, agreement to a lease transfer, option or license (but only to right with respect to, or Lien on, any property or assets of the extent that such restriction is imposed Borrower or any Restricted Subsidiary not otherwise prohibited by the instruments pursuant 2022 Senior Note Indenture; or
(C) arising or agreed to which such lease in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or license is created)in the aggregate, (ii) that restrict reduce the transfer value of property or assets of the Company Borrower or any Restricted Subsidiary subject in any manner material to the Borrower or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such Lien, Indebtedness was issued if:
(A) the encumbrance or restriction either: (1) applies only in the event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (2) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Term Loan B Lenders of the Term Loan B Loans or the obligation secured therebyHolders than is customary in comparable financings (as determined by the Borrower); and
(C) the Borrower determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Borrower’s ability to make principal or interest payments on the Term Loan B Loans or the 2022 Senior Notes. Nothing contained in this Section 9.4 shall prevent the Borrower or any Restricted Subsidiary from: (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 9.8 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company Borrower or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment secure Indebtedness of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees Borrower or any Collateral Documentof its Restricted Subsidiaries.
Appears in 1 contract
Samples: Credit Agreement (Tw Telecom Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) arising pursuant to the Credit Agreement;
(ii) existing on the Issue Closing Date in under this Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, replacements taken as a whole, whole are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5iii) existing under or by reason of applicable law;
(iv) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(v) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset, or (B) existing by virtue of any transfer of, agreement to a lease transfer, option or license right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(but only vi) arising or agreed to in the extent ordinary course of business, not relating to any Indebtedness, and that such restriction is imposed by do not, individually or in the instruments pursuant to which such lease or license is created)aggregate, (ii) that restrict detract from the transfer value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(vii) with respect to a Lien Restricted Subsidiary and imposed pursuant to an agreement for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary and that are customary for such transactions;
(viii) deferral of rights of subrogation pursuant to Guarantees otherwise permitted under this Indenture Indenture;
(but ix) existing pursuant to any agreement governing Indebtedness permitted to be Incurred under Section 4.03; provided that the provisions relating to such encumbrance or restriction contained in such Indebtedness are no less favorable to the Company in any material respect, as determined by the Board of Directors of the Company in their reasonable and good faith judgment, than the provisions contained in the Credit Agreement as in effect on the Closing Date;
(x) Indebtedness or other contractual requirements of a Securitization Subsidiary in connection with a Permitted Receivables Financing; provided that such restrictions apply only to such Securitization Subsidiary; or
(xi) provisions in joint venture agreements with respect to the extent that such restriction is imposed by disposition or distribution of assets or property in the instruments pursuant ordinary course of business. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to which such Lien, or the obligation secured thereby, is created) exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (VHS of Phoenix Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit 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 any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,;
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3) make loans or advances to the Company or any other Restricted Subsidiary, ; or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a4.05(a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on the Issue Reference Closing Date in this Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Reference Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided provided, however, that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, taken as a whole, replacements are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulationrequired by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
(43) existing (A) with respect to any Person, Person or to the property or assets of any Person, at the time the such Person is acquired by the Company or any Restricted Subsidiary (except to after the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Reference Closing Date, or (B) with respect to any Unrestricted Subsidiary existing at the time it is designated of such acquisition and not incurred in contemplation thereof, which encumbrances or is deemed restrictions are not applicable to become a Restricted Subsidiaryany Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and, in each case, and any extensions, renewalsrenewals or replacements of such encumbrances or restrictions; provided, replacements or refinancings of any of the foregoinghowever, provided that the encumbrances and restrictions in the extensionany such extensions, renewal, replacement renewals or refinancing are, taken as a whole, replacements are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced renewed or refinancedreplaced;
(54) in the case of clause (4) of the type described in clause Section 4.05(a):
(a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset;
(B) existing by virtue of any transfer of, agreement to a lease transfer, option or license right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture; or
(but only C) arising or agreed to in the extent ordinary course of business, not relating to any Indebtedness, and that such restriction is imposed by do not, individually or in the instruments pursuant to which such lease or license is created)aggregate, (ii) that restrict reduce the transfer value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(5) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(but only to 6) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such Lien, Indebtedness was issued if:
(A) the encumbrance or restriction either: (i) applies only in the obligation secured thereby, is created) event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement; or (iiiii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness (or on the Closing Date in the case of any Indebtedness Incurred after the Reference Closing Date and on or prior to the Closing Date) that restrict any such encumbrance or restriction would not be expected to materially impair the transfer Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from: (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Tw Telecom Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on the Issue Closing Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, replacements taken as a whole, whole are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(52) existing under or by reason of applicable law, regulation, rule or order;
(3) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired and any extensions, refinancings, renewals or replacements of thereof; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(4) in the case of clause (4) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05:
(iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset,
(B) existing by virtue of any transfer of, agreement to a lease transfer, option or license right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or
(but only C) arising or agreed to in the extent ordinary course of business, not relating to any Indebtedness, and that such restriction is imposed by do not, individually or in the instruments pursuant to which such lease or license is created)aggregate, (ii) that restrict detract from the transfer value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(5) with respect to a Lien Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(6) existing in agreements governing Indebtedness of any Subsidiary Guarantor permitted to be Incurred after the date of this Indenture, provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive than those permitted under this Indenture clause (but only 1) above, and any extensions, refinancings, renewals or replacements of such Indebtedness; and provided that the encumbrances or restrictions in any such extensions, refinancings, renewals or replacements taken as a whole are no less favorable in any material respect to the extent Holders than those encumbrances or restrictions that such restriction is imposed are then in effect and that are being extended, refinanced, renewed or replaced;
(7) existing under purchase money obligations for property acquired in the ordinary course of business consistent with past practice that impose encumbrances or restrictions on the property so acquired of the nature described in clause (4) of the first paragraph of this Section 4.05; and
(8) customary provisions with respect to the distribution of assets or property in joint venture agreements and other similar agreements. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any kind of 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 any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,;
(2) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary;
(3) make loans or advances to the Company or any other Restricted Subsidiary, ; or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on the Issue Date in this the Credit Agreement, the Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Date, and any extensions, refinancings, renewals, or replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extensionany such extensions, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensionsrefinancings, renewals, or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed, replaced or refinancedreplaced;
(52) existing under or by reason of applicable law;
(3) existing with respect to any person or the property or assets of such person acquired by the Company or any Restricted Subsidiary and existing at the time of such acquisition, which encumbrances or restrictions (i) are not applicable to any person or the property or assets of any person other than such person or the property or assets of such person so acquired and (ii) were not put in place in anticipation of such acquisition, and any extensions, refinancings, renewals, or replacements of any of the foregoing; PROVIDED that the encumbrances and restrictions in any such extensions, refinancings, renewals, or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed, or replaced;
(4) in the case of clause (4) of the type described in clause (a)(3) first paragraph of this Section 4.09 covenant;
(i) that restrict in a customary manner the subletting, assignment, or transfer of any property or asset that is a lease, license, conveyance, or contract or similar property or asset;
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by the Indenture; or
(iii) not relating to any Indebtedness, and, in each of cases (i), (ii), or (iii), arising or agreed to in the ordinary course of business (i) and that restrict do not, individually or in a customary manner the charteringaggregate, subletting, assignment or transfer of any property or asset that is subject to a lease or license (but only to detract from the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created), (ii) that restrict the transfer value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; or
(5) with respect to a Lien permitted under this Indenture (but only to the extent that such restriction is Restricted Subsidiary and imposed by the instruments pursuant to which such Lienan agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary. Nothing contained in the obligation secured therebypreceding paragraph shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming, or suffering to exist any Liens otherwise permitted by Section 4.14 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Avado Brands Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary (other than a Receivables Subsidiary) to:
(1) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,;
(2) repay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3) make loans or advances to the Company or any other Restricted Subsidiary, ; or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on the Issue Closing Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, replacements taken as a whole, whole are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing under or by reason of applicable law;
(3) that are customary non-assignment provisions in contracts, agreements, leases, permits and licenses;
(4) that are purchase money obligations for property acquired and Capitalized Lease Obligations that impose restrictions on the property purchased or leased;
(5) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired and any extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(6) in the case of clause (4) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.08:
(iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset,
(B) existing by virtue of any transfer of, agreement to a lease transfer, option or license right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture, or
(but only C) arising or agreed to in the extent normal course of business, not relating to any Indebtedness, and that such restriction is imposed by do not, individually or in the instruments pursuant to which such lease or license is created)aggregate, (ii) that restrict detract from the transfer value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(7) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(but only 8) relating to a Subsidiary Guarantor and contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if:
(A) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company in good faith); and
(B) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal or interest payments on the Notes;
(9) arising from customary provisions in joint venture agreements and other similar agreements;
(10) existing in the documentation governing any Permitted Securitization; or;
(11) contained in any agreement governing Indebtedness permitted under clause (8) of the second paragraph of part (a) of Section 4.09. Nothing contained in this Section 4.08 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or the obligation secured thereby, is created) suffering to exist any Liens otherwise permitted in Section 4.12 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Hanesbrands Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any amendments, extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided PROVIDED that the amendments, encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Dobson Wireline Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b4.05(b), the Company will shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(3) make loans or advances to the Company or any other Restricted Subsidiary, or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a4.05(a) do not apply to any encumbrances or restrictions:
(1) existing on the Issue Date as provided for in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Securityholders than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilitiesunder or by reason of applicable law;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets Property of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary Subsidiary, which encumbrances or restrictions: (except i) are not applicable to any other Person or the extent such encumbrance was incurred Property of any other Person; and (ii) were not put in connection with or place in contemplation anticipation of such acquisition)event, or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, and any extensions, renewals, replacements or refinancings of any of the foregoing, ; provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Securityholders than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(4) with respect to any agreement governing Debt of any Restricted Subsidiary that is permitted to be Incurred under Section 4.03; provided that (i) the encumbrance or restriction is not materially disadvantageous to the holders of the Securities than is customary in comparable financings, and (ii) the Company determines that on the date of the Incurrence of such Debt, that such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Securities;
(5) of the type described in clause (a)(3Section 4.05(a)(4) of this Section 4.09 arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset Property that is subject to a lease or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created), (ii) that restrict the transfer by virtue of property any Lien on, or assets of agreement to transfer, option or similar right with respect to any Property of, the Company or any Restricted Subsidiary subject to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)Subsidiary;
(6) contained in with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the terms governing any Debt (other than Trade Obligations) otherwise sale or disposition of all or substantially all of the Capital Stock of, or Property of, the Restricted Subsidiary that is permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; orSection 4.06;
(7) set forth with respect to a Restricted Subsidiary and imposed pursuant to a customary provision in this Indenture, a joint venture or other similar agreement with respect to such Restricted Subsidiary that was entered into in the Guarantees or any Collateral Document.ordinary course of business;
(8) imposed by the standard loan documentation in connection with loans from (a)
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(bparagraph (b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit 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 on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(3) make loans or advances to the Company or any other Restricted Subsidiary, or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(aparagraph (a) do not apply to any encumbrances or restrictions:
(1) existing on the Issue Date in this Indenturethe Senior Credit Facility, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law law, rule, regulation or governmental regulationorder;
(43) existing existing
(A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary; which encumbrances or restrictions (i) are not applicable to any other Person or the property or assets of any other Person and (ii) were not put in place in anticipation of such event, and, in each case, and any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(54) of the type described in clause (a)(3a)(4) of this Section 4.09 arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property property, including intellectual property, or asset that is subject to a lease or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created), (ii) that restrict the transfer by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of of, the Company or any Restricted Subsidiary subject Subsidiary;
(5) with respect to a Lien permitted under this Indenture (but only to the extent that such restriction is Restricted Subsidiary and imposed by the instruments pursuant to which such Lienan agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during by the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)Indenture;
(6) contained in the terms governing any Permitted Refinancing Debt (other if the encumbrances and restrictions, are, taken as a whole, no less favorable in any material respect to the Noteholders than Trade Obligations) otherwise permitted under this Indenture, if (as determined those contained in the reasonable judgment of agreements governing the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; orDebt being refinanced;
(7) set forth consisting of customary restrictions pursuant to any Permitted Receivables Financing;
(8) required pursuant to the Indenture;
(9) on cash or other deposits or net worth imposed by customers under contracts entered into in this the ordinary course of business consistent with past practice;
(10) consisting of customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business consistent with past practice; and
(11) imposed by any agreement relating to Debt permitted by the Indenture, if such restrictions or conditions apply only to the Guarantees property or any Collateral Documentassets securing such Debt and/or only to the Restricted Subsidiary incurring such Debt or its Subsidiaries.
Appears in 1 contract
Samples: Indenture (Seagate Technology)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company WCI will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company WCI or any other Restricted Subsidiary,;
(2ii) pay any Indebtedness owed to WCI or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary;
(iii) make loans or advances to the Company WCI or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary, ; or
(3iv) transfer any of its property or assets to the Company WCI or any other Restricted Subsidiary that owns, directly or indirectly, any Capital Stock of such Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to prohibit any encumbrances or restrictions:
(1i) existing on the Issue Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements agreement in effect on the Issue Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided provided, however, that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by WCI or any Restricted Subsidiary, at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of WCI or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company WCI or any Restricted Subsidiary subject in any manner material to WCI or any Restricted Subsidiary; or
(v) with respect to a Lien permitted under this Indenture (but only to the extent that such restriction is Restricted Subsidiary and imposed by the instruments pursuant to which such Lienan agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary. Nothing contained in this Section 4.05 shall prevent WCI or any Restricted Subsidiary from (i) restricting the obligation secured thereby, is created) sale or (iii) that restrict the transfer other disposition of property or assets of the Company WCI or any of its Restricted Subsidiary Subsidiaries that is subject secure Indebtedness of WCI or any of its Restricted Subsidiaries or (ii) creating, incurring, assuming or suffering to a merger agreement, stock or asset purchase agreement or similar agreement, so long as exist any such transfer is Liens otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSection 4.09.
Appears in 1 contract
Samples: Guaranteed Senior Secured Notes Indenture (Winstar Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any extensions, refinancings, renewals or replacements of the agreement containing such encumbrance or restriction; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company, or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(but only to vi) contained in the extent that such restriction is imposed by terms of Indebtedness having an aggregate principal amount not in excess of the instruments greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such LienIndebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders than is customary in comparable financings (as determined by the Company), (C) the Company determines that any such encumbrance or restriction will not materially affect its ability to make principal or interest payments on the Notes, (D) if the aggregate principal amount of such Indebtedness exceeds the greater of (1) $5 million and (2) 5% of Consolidated EBITDA for the Four Quarter Period, the documents pursuant to which all such indebtedness in excess of such amount is outstanding expressly state that such Restricted Subsidiary shall be entitled to take the actions referred to in clauses (i) through (iv) of the first paragraph of this Section 4.05 in an amount not to exceed 50% of the consolidated net income of such Restricted Subsidiary (after making adjustments thereto in the nature of the adjustments referred to in the definition of "Adjusted Consolidated Net Income") and (E) the Investments made by the Company and its Restricted Subsidiaries in such Restricted Subsidiary are reasonably related to the business of such Restricted Subsidiary; and
(vii) provisions contained in agreements or instruments which prohibit the payment of dividends or the obligation secured therebymaking of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basis. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Econophone Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted 55 49 Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or 56 50
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Allegiance Telecom Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except So long as provided in Section 4.09(b)any of the Notes are Outstanding, the Company Issuer will not, and will not permit any Restricted Subsidiary Person to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary Person to:
(1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary Person owned by the Company Parent or any other Restricted Subsidiary,Person;
(2ii) pay any indebtedness owed to Parent or any other Restricted Person;
(iii) make loans or advances to the Company Parent or any other Restricted Subsidiary, Person; or
(3iv) transfer any of its property or assets to the Company Parent or any other Restricted Subsidiary.
(b) Person. The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancingreplacements, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders Holders of the Notes than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if the encumbrance or restriction applies only in the event of a payment default or default with respect to a financial covenant contained in such Indebtedness or agreement and such encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Issuer) and the Issuer determines that any such encumbrance or restriction will not materially affect the Issuer’s ability to make principal or interest payments on the Notes;
(iii) existing under or by reason of applicable law;
(iv) existing with respect to any Person or the property or assets of such Person acquired by any Restricted Person, existing at the time of such acquisition and not incurred in the reasonable judgment of the Company) than the contemplation thereof, which encumbrances or restrictions being extendedare not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired and as the same may be amended, modified, restated, renewed, supplemented, refunded, replaced or refinanced; provided that such amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings, taken as a whole, are no less favorable in any material respect to the Holders of the Notes than those encumbrances or restrictions that are then in effect and that are being so amended, modified, restated, renewed, supplemented, refunded, replaced or refinanced;
(5v) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 10.13,
(iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is, or is subject to, a lease, purchase mortgage obligation, construction financing agreement, license, conveyance or contract or similar property or asset, including, without limitation, customary non-assignment provisions in leases, Purchase Money Obligations and other similar agreements, in each case with respect to the property or assets subject thereto,
(B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of any Restricted Person not otherwise prohibited by this Indenture, or
(C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of any Restricted Person in any manner material to any Restricted Person;
(vi) with respect to a lease Restricted Person and imposed pursuant to an agreement that has been entered into for the sale or license disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Person; or
(but only to the extent that such restriction is vii) imposed by the instruments pursuant to which such lease or license is created), (ii) customary provisions in joint venture agreements and similar agreements that restrict the transfer of property or assets of the Company or interest in the joint venture. Nothing contained in this Section 10.13 shall prevent any Restricted Subsidiary subject Person from (1) creating, incurring, assuming or suffering to a Lien exist any Liens otherwise permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) in Section 10.16 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any Restricted Subsidiary Person that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as secure Indebtedness of any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentPerson.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company The Issuer will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit 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 any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company Issuer or any other Restricted Subsidiary,;
(2) pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3) make loans or advances to the Company Issuer or any other Restricted Subsidiary, ; or
(34) transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a) do , provided, however, that this prohibition shall not apply to any encumbrances or restrictions:
(1a) existing on the Issue Date in imposed by this Indenture, the GuaranteesNotes, the Collateral Documents or any other agreements in effect on Note Guarantees and the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinancedSecurity Documents;
(2) existing in the Credit Facilities;
(3b) existing under or by reason of applicable law Applicable Law or governmental regulationrule, regulation or order applicable other than solely on account of the action or inaction of the Issuer or a Restricted Subsidiary;
(4) existing (Ac) with respect to any Person, or to the property or assets acquired from a Person which is merged with or into the Issuer or any Restricted Subsidiary, or by reason of any PersonLiens on any property or assets, or relating to or arising under the Indebtedness, of any Person or other entity existing at the time such Person or other entity becomes a Restricted Subsidiary, or any restriction or encumbrance relating to Indebtedness of any such Person and, in any such case, that is not created as a result of or in connection with or in anticipation of any such transaction, and any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any such encumbrance or restriction, so long as the terms are substantially identical to such encumbrance or restriction (other than with respect to the duration thereof); provided, however, that any such Lien created to secure or provide for the payment of any part of the purchase price of such Person is acquired shall not be permitted by this covenant; provided further, that such Liens may not extend to any other property owned by the Company Issuer or any Restricted Subsidiary (except other than improvements, accessions, upgrades, accessories and products and proceeds in respect of the property subject to such Liens at the extent time of such encumbrance was incurred acquisition);
(d) with respect to any property or assets existing at the time of acquisition thereof and which are not created as a result of or in connection with or in contemplation anticipation of such acquisitionacquisition and any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any such encumbrance or restriction, so long as the terms are substantially identical to such encumbrance or restriction (B) other than with respect to the duration thereof); provided, however, that any Unrestricted Subsidiary at such encumbrance or restriction created to secure or provide for the time it is designated payment of any part of the purchase price of such Person shall not be permitted by this covenant; provided further, that such encumbrance or is deemed restriction may not extend to become a any other property owned by the Issuer or any Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions ;
(e) in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment case of the Company) than the encumbrances or restrictions being extended, renewed, replaced addressed under Section 4.1(l)(3) or refinanced;(4):
(5) of the type described in clause (a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (i) that restrict exist by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(ii) that restricts in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license or similar contract, or the assignment or transfer of any such lease, license or other contract or contractual right;
(iii) contained in mortgages, pledges or other security agreements permitted under this Indenture securing Indebtedness of the Issuer or a Restricted Subsidiary to the extent such encumbrances or restrictions restrict the transfer of the property subject to such mortgages, pledges or other security agreements;
(f) arising or agreed to in the ordinary course of business, not relating to Indebtedness, and that do not, individually or in the aggregate, detract from the value of the property or assets of the Issuer or any Restricted Subsidiary in any manner material to the Issuer and its Restricted Subsidiaries;
(g) imposed by Purchase Money Obligations for property acquired in the ordinary course of business or by Capitalized Lease Obligations permitted under this Indenture on the property so acquired, but only to the extent that such restriction is imposed by the instruments pursuant to which such lease encumbrances or license is created), (ii) that restrictions restrict the transfer of property the property;
(h) by reason of Liens that secure Indebtedness otherwise permitted to be Incurred under the provisions of the covenant described under Section 4.1(g) above and that limit the right of the debtor to dispose of the assets subject to such Liens;
(i) existing on the Closing Date (including agreements governing Credit Facilities) and any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any such encumbrance or restriction, so long as the terms are substantially identical to such encumbrance or restriction (other than with respect to the duration thereof);
(j) imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of the Company Issuer or any such Restricted Subsidiary subject to a Lien permitted under this Indenture (but only to pending the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions closing of such type);
(6) contained in sale or disposition; provided that the terms governing any Debt (other than Trade Obligations) otherwise sale or disposition is permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7k) set forth resulting from restrictions on cash or other deposits or other customary requirements imposed by customers or suppliers under contracts entered into in this Indenture, the Guarantees or any Collateral Documentordinary course of business.
Appears in 1 contract
Samples: Indenture (Gran Tierra Energy Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual 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 any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,;
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3) make loans or advances to the Company or any other Restricted Subsidiary, ; or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Closing Date, and any amendments, modifications, extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided provided, however, that the encumbrances and restrictions in the extensionany such amendments, renewalmodifications, replacement extensions, refinancings, renewals or refinancingreplacements, taken as a whole, are not materially less favorable to the Noteholders more restrictive (as determined in the reasonable judgment of by the Company) than the those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulationrequired by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
(43) existing (A) with respect to any Person, Person or to the property or assets of any Person, at the time the such Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or (B) with respect to any Unrestricted Subsidiary existing at the time it is designated of such acquisition and not incurred in contemplation thereof, which encumbrances or is deemed restrictions are not applicable to become a Restricted Subsidiaryany Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, andand any amendments, in each casemodifications, any extensions, renewalsrefinancings, renewals or replacements of such encumbrances or refinancings of any of the foregoingrestrictions; provided, provided however, that the encumbrances and restrictions in the extensionany such amendments, renewalmodifications, replacement extensions, renewals or refinancing arereplacements, taken as a whole, no less favorable in any material respect to the Noteholders are not materially more restrictive (as determined in the reasonable judgment of by the Company) than the those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(54) in the case of clause (4) of the type described in clause Section 4.05(a):
(a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset;
(B) existing by virtue of any transfer of, agreement to a lease transfer, option or license (but only to right with respect to, or Lien on any of the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created), (ii) that restrict the transfer of property or assets of the Company or any a Restricted Subsidiary subject not otherwise prohibited by this Indenture; or
(C) arising or agreed to a Lien permitted under this Indenture (but only in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the extent that such restriction is imposed by aggregate, reduce the instruments pursuant to which such Lien, or value of the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any a Restricted Subsidiary that is subject in any manner material to the Company or such Restricted Subsidiary;
(5) with respect to a merger agreementRestricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, stock or asset purchase agreement or similar agreementproperty and assets of, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)Restricted Subsidiary;
(6) contained in the terms governing of any Debt Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(other than Trade ObligationsA) otherwise permitted under this Indenture, if the encumbrance or restriction either:
(as determined i) applies only in the reasonable judgment event of the Company) the encumbrances a payment default or restrictions are necessary non-compliance with respect to a financial covenant contained in such Indebtedness or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that typeagreement; or
(ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes;
(7) set forth arising from customary provisions in joint venture agreements and other agreements entered into in the ordinary course of business;
(8) pursuant to the Notes and the Subsidiary Guarantees and any Exchange Notes and Subsidiary Guarantees exchanged therefor or for Additional Notes and the related Subsidiary Guarantees to be issued pursuant to this Indenture and the Registration Rights Agreement or pursuant to this Indenture, the Guarantees Collateral Documents or the Intercreditor Agreement;
(9) imposed on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(10) imposed in connection with Capitalized Leases or purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature specified in clause (4) above on the property so acquired;
(11) contained in the terms of any Indebtedness of any Restricted Subsidiary that is Incurred as permitted pursuant to Section 4.03;
(12) imposed in connection with any Investment not prohibited by Section 4.04 and or in connection with any Permitted Investment; provided, however, that such restriction or encumbrance applies only to the Person that is the subject of such Investment or Permitted Investment, as applicable;
(13) contained in the terms of any Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.08 that limit the right of the debtor to dispose of the assets securing such Secured Indebtedness;
(14) customary guarantees by the Company of non-Indebtedness obligations of a Subsidiary set forth in leases, licenses and other agreements entered into by the Subsidiary in the ordinary course of business; or
(15) applicable to a Receivables Subsidiary and effected in connection with a Qualified Receivables Financing; provided, however, that such restriction or encumbrance applies only to such Receivables Subsidiary.
(c) Nothing contained in this Section 4.05 shall prevent the Company or any Collateral DocumentRestricted Subsidiary from:
(1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted under Section 4.08; or
(2) restricting the sale or other disposition of the Company’s property or assets or the property or assets of any of its Restricted Subsidiaries that secure the Company’s Indebtedness or the Indebtedness of any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Earthlink Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in the Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue DateClosing Date (and upon consummation of the Stone Transaction, existing on the Stone Transaction Date in the Stone Credit Agreement or any other agreements in effect on the Stone Transaction Date under which Stone or any of its Subsidiaries is a party or any of their assets are bound), and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing; provided PROVIDED that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, taken as a whole, replacements are not materially less favorable taken as a whole to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental regulationlaw;
(4iii) existing (A) with respect to any Person, Person or to the property or assets of any Person, at the time the such Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or (B) with respect to any Unrestricted Subsidiary existing at the time it is designated or is deemed to become a Restricted Subsidiaryof such acquisition and not incurred in contemplation thereof, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the which encumbrances or restrictions being extended, renewed, replaced are not applicable to any Person or refinancedthe property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(5iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business SECTION 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company and its Restricted Subsidiaries taken as a whole;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(but only vi) customary provisions with respect to the extent that such restriction is imposed by 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 instruments ordinary course of business;
(vii) any agreement or instrument governing Indebtedness (whether or not outstanding) of any Foreign Subsidiary of the Company permitted to be incurred pursuant to which clause (x) under SECTION 4.03 so long as (1) such Lien, agreement or instrument is not applicable to any Person or the obligation secured therebyproperty or assets of any Person other than such Foreign Subsidiary or the property or assets of such Foreign Subsidiary and its Foreign 49 Subsidiaries and (2) not more than 20% of such Foreign Subsidiary's assets are located in the United States; and
(viii) any restriction in any agreement or instrument of a Receivables Subsidiary governing a Qualified Securitization Transaction. Nothing contained in this SECTION 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted by SECTION 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Jsce Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or consensual 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 any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,;
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(3) make loans or advances to the Company or any other Restricted Subsidiary, ; or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1) existing on the Issue Closing Date (including encumbrances and restrictions existing on the Closing Date that are contained in this Indenture, the Guarantees, terms of the Collateral Documents ITC^DeltaCom Notes) or any other agreements in effect on the Issue Closing Date, and any amendments, modifications, extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided provided, however, that the encumbrances and restrictions in the extensionany such amendments, renewalmodifications, replacement extensions, refinancings, renewals or refinancingreplacements, taken as a whole, are not materially less favorable to the Noteholders more restrictive (as determined in the reasonable judgment of by the Company) than the those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulationrequired by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary;
(43) existing (A) with respect to any Person, Person or to the property or assets of any Person, at the time the such Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or (B) with respect to any Unrestricted Subsidiary existing at the time it is designated of such acquisition and not incurred in contemplation thereof, which encumbrances or is deemed restrictions are not applicable to become a Restricted Subsidiaryany Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, andand any amendments, in each casemodifications, any extensions, renewalsrefinancings, renewals or replacements of such encumbrances or refinancings of any of the foregoingrestrictions; provided, provided however, that the encumbrances and restrictions in the extensionany such amendments, renewalmodifications, replacement extensions, renewals or refinancing arereplacements, taken as a whole, no less favorable in any material respect to the Noteholders are not materially more restrictive (as determined in the reasonable judgment of by the Company) than the those encumbrances or restrictions that are then in effect and that are being amended, modified, extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(54) in the case of clause (4) of the type described in clause Section 4.05(a):
(a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject a lease, license, conveyance or contract or similar property or asset;
(B) existing by virtue of any transfer of, agreement to a lease transfer, option or license (but only to right with respect to, or Lien on any of the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created), (ii) that restrict the transfer of property or assets of the Company or any a Restricted Subsidiary subject not otherwise prohibited by this Indenture; or
(C) arising or agreed to a Lien permitted under this Indenture (but only in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the extent that such restriction is imposed by aggregate, reduce the instruments pursuant to which such Lien, or value of the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any a Restricted Subsidiary that is subject in any manner material to the Company or such Restricted Subsidiary;
(5) with respect to a merger agreementRestricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, stock or asset purchase agreement or similar agreementproperty and assets of, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)Restricted Subsidiary;
(6) contained in the terms governing of any Debt Indebtedness or any agreement pursuant to which such Indebtedness was issued if:
(other than Trade ObligationsA) otherwise permitted under this Indenture, if the encumbrance or restriction either:
(as determined i) applies only in the reasonable judgment event of the Company) the encumbrances a payment default or restrictions are necessary non-compliance with respect to a financial covenant contained in such Indebtedness or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that typeagreement; or
(ii) is contained in a Credit Agreement;
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company); and
(C) the Company determines on the date of the Incurrence of such Indebtedness that any such encumbrance or restriction would not be expected to materially impair the Company’s ability to make principal or interest payments on the Notes;
(7) arising from customary provisions in joint venture agreements and other agreements entered into in the ordinary course of business;
(8) pursuant to the Notes and the Subsidiary Guarantees and any Exchange Notes and Subsidiary Guarantees exchanged therefor or for Additional Notes and the related Subsidiary Guarantees to be issued pursuant to this Indenture and the Registration Rights Agreement;
(9) imposed on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(10) imposed in connection with Capitalized Leases or purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature specified in clause (4) above on the property so acquired;
(11) contained in the terms of any Indebtedness of any Restricted Subsidiary that is Incurred as permitted pursuant to Section 4.03;
(12) imposed in connection with any Investment not prohibited by Section 4.04 and or in connection with any Permitted Investment; provided, however, that such restriction or encumbrance applies only to the Person that is the subject of such Investment or Permitted Investment, as applicable;
(13) contained in the terms of any Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 4.03 and Section 4.08 that limit the right of the debtor to dispose of the assets securing such Secured Indebtedness;
(14) customary guarantees by the Company of non-Indebtedness obligations of a Subsidiary set forth in leases, licenses and other agreements entered into by the Subsidiary in the ordinary course of business; or
(15) applicable to a Receivables Subsidiary and effected in connection with a Qualified Receivables Financing; provided, however, that such restriction or encumbrance applies only to such Receivables Subsidiary.
(c) Nothing contained in this Indenture, Section 4.05 shall prevent the Guarantees Company or any Collateral DocumentRestricted Subsidiary from:
(1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted under Section 4.08; or
(2) restricting the sale or other disposition of the Company’s property or assets or the property or assets of any of its Restricted Subsidiaries that secure the Company’s Indebtedness or the Indebtedness of any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Earthlink Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company The Guarantor will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company Guarantor or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Guarantor or any other Restricted Subsidiary, make loans or advances to the Company Guarantor or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company Guarantor or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
: (1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Lenders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinanced;
replaced; (5ii) existing under or by reason of applicable law; (iii) existing with respect to any Person or the property or assets of such Person acquired by the Guarantor or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business Subsection 11(b)(3) (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Guarantor or any Restricted Subsidiary not otherwise prohibited by this Guarantee or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company Guarantor or any Restricted Subsidiary subject in any manner material to the Guarantor or any Restricted Subsidiary; (v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary during the period between the execution of such agreement and the closing thereunder; or (but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not more disadvantageous to the obligation secured therebyLenders than is customary in comparable financings (as determined in good faith by the Board of Directors) and (C) the Board of Directors determines that any such encumbrance or restriction will not adversely affect the Guarantor's financial ability to make principal or interest payments on the Term Loans when due. Nothing contained in this Subsection 11(b)(3) shall prevent the Guarantor or any Restricted Subsidiary from (1) creating, is createdincurring, assuming or suffering to exist any Liens otherwise permitted in Subsection 11(b)(7) or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company Guarantor or any of its Restricted Subsidiary Subsidiaries that is subject to secure, in a merger agreementmanner permitted by this Guarantee, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment Indebtedness of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this IndentureGuarantor, the Guarantees or any Collateral Documentof its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(bparagraph (b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit 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 on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(3) make loans or advances to the Company or any other Restricted Subsidiary, or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(aparagraph (a) do not apply to any encumbrances or restrictions:
(1) existing on the Issue Date in this Indenturethe Credit Agreement, the Guarantees, the Collateral Documents Indenture or any other agreements or instruments in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in under or by reason of applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Credit FacilitiesCompany or any Restricted Subsidiary or any of their businesses;
(3) existing under or by reason (including, without limitation, as part of applicable law or governmental regulation;the terms of any Acquired Debt)
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, andwhich encumbrances or restrictions (i) are not applicable to any other Person or the property or assets of any other Person and (ii) were not put in place in anticipation of such event, in each case, and any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(54) of the type described in clause (a)(3) of this Section 4.09 arising or agreed to in the ordinary course of business (iA) that restrict restricts in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license or similar contract, or the assignment or transfer of any lease, license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease or license is created)other contract, (iiB) that restrict the by virtue of any transfer of of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary subject to not otherwise prohibited by the Indenture, (C) contained in mortgages, pledges or other security agreements securing Debt of a Lien Restricted Subsidiary (permitted under this Indenture (but only by the Indenture) to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict restricting the transfer of the property or assets subject thereto, (D) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary, (E) pursuant to purchase money obligations or Capital Lease obligations (permitted by the Indenture) that impose encumbrances or restrictions on the property or assets so acquired, (F) on cash or other deposits or net worth imposed by customers or suppliers under agreements entered into in the ordinary course of business, (G) pursuant to customary provisions contained in agreements, including, without limitation, any joint venture agreements, and instruments entered into in the ordinary course of business (including but not limited to leases, sale and leaseback agreements, asset sale agreements and joint venture and other similar agreements entered into in the ordinary course of business), or (H) pursuant to customary provisions in Hedging Agreements, permitted by the Indenture;
(5) with respect to a Restricted Subsidiary (or any of its property or assets) and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, the Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type)by Section 4.13;
(6) contained in the terms governing any Permitted Refinancing Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in good faith by the reasonable judgment Board of the CompanyDirectors) the encumbrances or restrictions are necessary are, taken as a whole, no less favorable in any material respect to the Noteholders than those contained in the agreements governing the Debt being refinanced;
(7) any customary encumbrances or required restrictions contained in (i) any Credit Facilities extended to enable any Foreign Subsidiary of the Company permitted to be Incurred under the Indenture or (ii) Debt, Preferred Stock or Disqualified Stock permitted to be Incurred under the Indenture; provided that the Board of Directors determines in good faith that such Restricted Subsidiary restrictions will not have a material adverse effect on the Company’s ability to obtain or maintain pay principal and interest on the Notes;
(8) any customary restrictions imposed in connection with a financing of that typeSecuritization Financing; or
(79) set forth in this required pursuant to the Indenture, the Guarantees or any Collateral Document.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the Company The Borrower will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company Borrower or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Borrower or any other Restricted Subsidiary, (iii) make loans or advances to the Company Borrower or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company Borrower or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1a) existing on the Issue Closing Date in the First Lien Credit Agreement, this Indenture, the Guarantees, the Collateral Documents Agreement or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, replacements taken as a whole, whole are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment Holders of the Company) Obligations than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5b) existing under or by reason of applicable law, regulation, rule or order;
(c) existing with respect to any Person or the property or assets of such Person acquired by the Borrower or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired and any extensions, refinancings, renewals or replacements of thereof; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements taken as a whole are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(d) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 6.4:
(i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created), similar property or asset,
(ii) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement or
(iii) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company Borrower or any Restricted Subsidiary subject in any manner material to the Borrower or any Restricted Subsidiary;
(iv) with respect to a Lien Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(v) existing in agreements governing Indebtedness of any Guarantor permitted to be Incurred after the date of this Agreement, provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive than those permitted under this Indenture clause (but only a) above, and any extensions, refinancings, renewals or replacements of such Indebtedness; and provided that the encumbrances or restrictions in any such extensions, refinancings, renewals or replacements taken as a whole are no less favorable in any material respect to the extent Holders than those encumbrances or restrictions that such restriction is imposed are then in effect and that are being extended, refinanced, renewed or replaced;
(vi) existing under purchase money obligations for property acquired in the ordinary course of business consistent with past practice that impose encumbrances or restrictions on the property so acquired of the nature described in clause (iv) of the first paragraph of this Section 6.4; and
(vii) customary provisions with respect to the distribution of assets or property in joint venture agreements and other similar agreements. Nothing contained in this Section 6.4 shall prevent the Borrower or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) Section 6.8 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company Borrower or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment secure Indebtedness of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees Borrower or any Collateral Documentof its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; 45 39
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the obligation secured therebyHolders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Allegiance Telecom Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(bparagraph (b), the Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit 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 on any Equity Interests of such the Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2) pay any Debt or other obligation owed to the Company or any other Restricted Subsidiary,
(3) make loans or advances to the Company or any other Restricted Subsidiary, or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(aparagraph (a) do not apply to any encumbrances or restrictions:
(1) existing on the Issue Date in this Indenturethe Credit Agreement, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Date, and any extensions, renewals, replacements or refinancings of any of the foregoing; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancingrefinancing are, taken as a whole, are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;existing
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or or
(B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, andwhich encumbrances or restrictions (i) are not applicable to any other Person or the property or assets of any other Person and (ii) were not put in place in anticipation of such event, in each case, and any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(53) of the type described in clause (a)(3a)(4) of this Section 4.09 arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license or license Purchase Money Obligation or (but ii) by virtue of any Lien on, or agreement to transfer, option or similar right with respect to any property or assets of, the Company or any Restricted Subsidiary;
(4) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, the Restricted Subsidiary that is permitted by Section 4.13;
(5) contained in the terms governing any Debt if (as determined in good faith by the Board of Directors)
(i) the encumbrances or restrictions are ordinary and customary for a financing of that type and (ii) the encumbrances or restrictions either (x) would not, at the time agreed to, be expected to materially adversely affect the ability of the Company to make payments on the Notes or (y) in the case of any Permitted Refinancing Debt, are, taken as a whole, no less favorable in any material respect to the Noteholders than those contained in the agreements governing the Debt being refinanced;
(6) existing under or by reason of applicable law or any applicable rule, regulation or order;
(7) existing under or by reason of joint venture agreements and other similar agreements that prohibit actions of the type described in paragraph (a) above, which prohibitions are applicable only to the extent entity or assets that are the subject of such restriction is arrangements;
(8) (A) on cash or other deposits or net worth imposed by customers or supplied under agreements entered into in the instruments pursuant to which such lease or license is created)ordinary course of business, (iiB) that restrict arises or is agreed to in the transfer ordinary course of business and does not detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to a Lien permitted under this Indenture (but only to the extent that such restriction is imposed by the instruments pursuant to which such Lien, or the obligation secured thereby, is created) or (iii) that restrict the transfer of property or assets of the Company or any Restricted Subsidiary that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such Restricted Subsidiary or adversely affect the ability of the Company to obtain make interest and principal payments with respect to the Notes or maintain a financing of that type(C) pursuant to Interest Rate Protection Agreements; or
(79) set forth in this required pursuant to the Indenture, the Guarantees or any Collateral Document.
Appears in 1 contract
Samples: Indenture (J2 Global, Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) . The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
: (1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extension, renewal, replacement or refinancing, taken as a whole, are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinanced;
replaced; (5ii) existing under or by reason of applicable law; (iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary and existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (iv) in the case of clause (iv) of the type described in clause (a)(3) first paragraph of this Section 4.09 arising or agreed to in the ordinary course of business 4.05 (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; (v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or (but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if (A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in such Indebtedness or agreement; provided that in the case of the Credit Agreement the encumbrance or restriction may apply if an event of default (other than an event of default resulting solely from the breach of a representation or warranty) occurs and is continuing under the Credit Agreement; provided that, with respect to any event of default (other than a payment default, a bankruptcy event with respect to the Company or the obligation secured therebyloss of a material license or fiber network) under the Credit Agreement, such encumbrance or restriction may not prohibit dividends to the Company to pay scheduled interest on the Notes for more than 180 days in any consecutive 360-day period, (B) the encumbrance or restriction is creatednot materially more disadvantageous to the Holders than is customary in comparable financings (as determined by the Company) and (C) the Company determines (as evidenced by a resolution of the Board of Directors) that any such encumbrance or restriction is not reasonably expected to materially affect the Company's ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Knology Holdings Inc /Ga)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, to create or otherwise cause or permit 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 any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary,
(3) make loans or advances to the Company or any other Restricted Subsidiary, Subsidiary or
(34) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The foregoing provisions of Section 4.09(a) do shall not apply to restrict any encumbrances or restrictions:
(1i) existing on the Issue Closing Date in this Indenture, the Guarantees, the Collateral Documents Indenture or any other agreements in effect on the Issue Closing Date, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, replacements taken as a whole, whole are not materially less favorable to the Noteholders (as determined in the reasonable judgment of the Company) than the encumbrances or restrictions being extended, renewed, replaced or refinanced;
(2) existing in the Credit Facilities;
(3) existing under or by reason of applicable law or governmental regulation;
(4) existing (A) with respect to any Person, or to the property or assets of any Person, at the time the Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition), or (B) with respect to any Unrestricted Subsidiary at the time it is designated or is deemed to become a Restricted Subsidiary, and, in each case, any extensions, renewals, replacements or refinancings of any of the foregoing, provided the encumbrances and restrictions in the extension, renewal, replacement or refinancing are, taken as a whole, no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment Holders of the Company) Notes than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinancedreplaced;
(5ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or asset of such Person so acquired;
(iv) in the case of clause (4) of the type described in clause part (a)(3a) of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary;
(v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
(but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such LienIndebtedness was issued if:
(A) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant contained in any Indebtedness or agreement,
(B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company in good faith) and
(C) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes; or
(vii) contained in the terms of any Indebtedness of any Restricted Subsidiary of the Company that is a Foreign Subsidiary or any agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company in good faith) and
(B) the Company determines that any such encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the Notes; or
(viii) restrictions or encumbrances imposed at the request of joint venture partners, provided that such joint venture is engaged in a Permitted Business. Nothing contained in this Section 4.05 shall prevent the Company or the obligation secured therebyany of its Restricted Subsidiaries from (1) creating, is created) incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (iii2) that restrict restricting the transfer sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Senior Notes Indenture (Colo Com)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.09(b), the The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
to (1i) pay dividends or make any other distributions permitted by applicable law on any Equity Interests Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
, (2ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary, or
Subsidiary or (3iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.09(a4.05(a) do shall not apply to restrict any encumbrances or restrictions:
: (1i) existing on the Issue Date in this IndentureFebruary 20, the Guarantees, the Collateral Documents 2004 or any other agreements in effect on the Issue DateFebruary 20, 2004, and any extensions, renewalsrefinancings, renewals or replacements or refinancings of any of the foregoingsuch agreements; provided that the encumbrances and restrictions in the extensionany such extensions, renewalrefinancings, replacement renewals or refinancing, taken as a whole, replacements are not materially no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewedrefinanced, replaced renewed or refinanced;
replaced; (2) existing in the Credit Facilities;
(3ii) existing under or by reason of applicable law or governmental regulation;
required by any regulatory authority having jurisdiction over the Company or any Restricted Subsidiary; (4iii) existing (A) with respect to any Person, Person or to the property or assets of any Person, at the time the such Person is acquired by the Company or any Restricted Subsidiary (except to the extent such encumbrance was incurred in connection with or in contemplation of such acquisition)Subsidiary, or (B) with respect to any Unrestricted Subsidiary existing at the time it is designated of such acquisition and not incurred in contemplation thereof, which encumbrances or is deemed restrictions are not applicable to become a Restricted Subsidiaryany Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and, in each case, and any extensions, renewalsrenewals or replacements of such encumbrances or restrictions; provided, replacements or refinancings of any of the foregoinghowever, provided that the encumbrances and restrictions in the extensionany such extensions, renewal, replacement renewals or refinancing are, taken as a whole, replacements are no less favorable in any material respect to the Noteholders (as determined in the reasonable judgment of the Company) Holders than the those encumbrances or restrictions that are then in effect and that are being extended, renewed, replaced renewed or refinanced;
replaced; (5iv) in the case of clause (iv) of the type described in clause paragraph (a)(3a) of this Section 4.09 arising or agreed to in the ordinary course of business 4.05, (iA) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease lease, license, conveyance or license (but only to the extent that such restriction is imposed by the instruments pursuant to which such lease contract or license is created)similar property or asset, (iiB) 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 Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that restrict do not, individually or in the transfer aggregate, reduce the value of property or assets of the Company or any Restricted Subsidiary subject in any manner material to the Company or any Restricted Subsidiary; (v) with respect to a Lien permitted under this Indenture Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary; or (but only to vi) contained in the extent that such restriction is imposed by the instruments terms of any Indebtedness or any agreement pursuant to which such Lien, Indebtedness was issued if (A) the encumbrance or restriction either (1) applies only in the obligation secured thereby, is created) event of a payment default or non-compliance with respect to a financial covenant contained in such Indebtedness or agreement or (iii2) is contained in a Credit Agreement, (B) the encumbrance or restriction is not materially more disadvantageous to the Holders of the Notes than is customary in comparable financings (as determined by the Company) and (C) the Company determines on the date of the Incurrence of such Indebtedness that restrict any such encumbrance or restriction would not be expected to materially impair the transfer Company’s ability to make principal or interest payments on the Notes. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiary Subsidiaries that is subject to a merger agreement, stock or asset purchase agreement or similar agreement, so long as any such transfer is otherwise permitted under this Indenture and such restriction is imposed only during the period pending such disposition (so long as such restriction does not continue for more than a customary period for transactions secure Indebtedness of such type);
(6) contained in the terms governing any Debt (other than Trade Obligations) otherwise permitted under this Indenture, if (as determined in the reasonable judgment of the Company) the encumbrances or restrictions are necessary or required to enable the Company or such any of its Restricted Subsidiary to obtain or maintain a financing of that type; or
(7) set forth in this Indenture, the Guarantees or any Collateral DocumentSubsidiaries.
Appears in 1 contract
Samples: Indenture (Time Warner Telecom Inc)
