Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions: (i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, 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; (ii) 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 first paragraph of this Section 4.05, (A) 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, (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 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary; (vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Econophone Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
: (i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, 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;
; (ii) 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, 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 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;
; or (vi) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) 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 loss 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 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 its the Company's 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Itc Deltacom Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of the Issuer to (ia)(i) pay dividends or make any other distributions permitted by applicable law to the Issuer or any Restricted Subsidiary of the Issuer (A) on any its Capital Stock of such Restricted Subsidiary owned by the Company or (B) with respect to any other interest or participation in, or measured by, its profits or (ii) repay any Indebtedness or any other Restricted Subsidiary, (ii) pay any Indebtedness obligation owed to the Company Issuer or any other Restricted SubsidiarySubsidiary of the Issuer, (iiib) make loans or advances or capital contributions to the Company Issuer or any other of its Restricted Subsidiary Subsidiaries or (ivc) transfer any of its property properties or assets to the Company Issuer or any other of its Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing DateSubsidiaries, and any extensions, refinancings, renewals or replacements of except for 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;
(ii) existing under or by reason of applicable law;
(i) encumbrances or restrictions existing on the Issue Date to the extent and in the manner such encumbrances and restrictions are in effect on the Issue Date or are no more restrictive in any material respect (including without limitation pursuant to the Senior Credit Facility), (ii) the Indenture, the Notes and the Guarantees, (iii) existing with respect applicable law, (iv) any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such the Person acquired by (including any Subsidiary of the Company or any Restricted SubsidiaryPerson), 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, (v) any agreement or instrument governing Indebtedness (whether or not outstanding) of Foreign Subsidiaries, (vi) customary non-assignment provisions in leases, licenses or other agreements entered in the ordinary course of business and any extensionsconsistent with past practices, refinancings, renewals or replacements of the agreement containing such encumbrance or restriction(vii) Refinancing Indebtedness; provided that the encumbrances and such payment restrictions in any such extensions, refinancings, renewals or replacements are no less favorable more restrictive in any material respect to the Holders than those encumbrances or restrictions that are then contained in effect and that are the agreements governing the Indebtedness being extended, refinanced, renewed renewed, replaced, defeased or replaced;
refunded, (ivviii) customary restrictions in the case of clause (iv) security agreements or mortgages or similar agreements securing Indebtedness of the first paragraph of this Section 4.05, (A) that Issuer or a Restricted Subsidiary to the extent such restrictions restrict in a customary manner the subletting, assignment or transfer of any the property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue of any transfer of, agreement subject 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 such security agreements and mortgages or (Cix) 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 the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(v) customary restrictions with respect to a Restricted Subsidiary and imposed of the Issuer 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) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (United Industries Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary Subsidiary, or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
: (i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such 141 41 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;
; (ii) 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, 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 first paragraph of this Section 4.054.04, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;
; (vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 Restricted Subsidiaries in such Indebtedness or agreementwhich, (B) the encumbrance or restriction is not materially more disadvantageous on and subsequent to the Holders than is customary in comparable financings (as determined by the Company)Closing Date, (C) the Company determines and its Restricted Subsidiaries only make Investments that any such encumbrance or restriction will not materially affect its ability are evidenced by unsubordinated promissory notes that bear a reasonable rate of interest and are payable prior to make principal or interest payments on the Stated Maturity of 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 ; provided that such Restricted Subsidiary shall be entitled to take encumbrances and restrictions expressly allow the actions payment of interest and principal on such promissory notes; (vii) solely of the type referred to in clauses clause (iiii) through or (iv) of the first paragraph of this Section 4.05 4.04 that are contained in an amount not to exceed 50% any stockholders' agreement, joint venture agreement or similar agreement among owners of the consolidated net income Common Stock of a Restricted Subsidiary; provided that such restrictions consist solely of requirements that transactions between such Restricted Subsidiary Subsidiaries and Affiliates thereof (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 including the Company and its Restricted Subsidiaries in Subsidiaries) be on fair and reasonable terms no less favorable to such Restricted Subsidiary are reasonably related than could be obtained in a comparable arm's-length transaction with a Person that is not such an Affiliate; or (viii) contained in the terms of any Indebtedness or any agreement pursuant to which such 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 Company's ability to make interest or principal payments on the Notes; or (ix) contained in the agreement pertaining to the business of such Restricted Subsidiary; and
(vii) provisions contained Proposed ING Credit Facility, provided that the terms thereof are not materially more restrictive than those set forth in agreements or instruments which prohibit the payment of dividends or offer letter from ING Barings dated July 24, 1997, including the making of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basisTerm Sheet attached thereto. Nothing contained in this Section 4.05 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 4.09 4.08 or (2) 142 42 restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Unless and until the Termination and Release shall have occurred, the Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions provision shall not restrict or prohibit any encumbrances or restrictions:
: (i) existing on pursuant to: (A) this Indenture, the Closing Date in this Indenture Securities, the Security Documents or any other agreements in effect on the Closing Date, and Date or in any Indebtedness containing any such encumbrance or restriction that is permitted pursuant to clause (iv) below or in any extensions, refinancings, renewals or replacements of such agreementsany 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;
replaced or (B) any agreement which imposes such encumbrances or restrictions on Persons other than a Guarantor, Palm Shipping or any Subsidiary of a Guarantor or Palm Shipping; 52 61 (ii) existing under any other agreement providing for the Incurrence of Indebtedness of any Restricted Subsidiary (other than a Guarantor or Palm Shipping) that is permitted to be Incurred by Section 4.03; provided that the encumbrances and restrictions in any such agreement are no less favorable in any material respect to the Holders than those encumbrances and restrictions existing as of the Closing Date and permitted pursuant to clause (i) above; (iii) existing under and by reason of applicable law;
; (iiiiv) existing with respect to any Person or the property or assets of such Person (other than a Guarantor or Palm Shipping) acquired by the Company or any Restricted Subsidiary, Subsidiary and existing at the time of such acquisition and not incurred in contemplation thereofacquisition, 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;
(ivv) in the case of clause (iv) of the first paragraph of this Section 4.05, (A) 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, (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 Company, Company or any Restricted Subsidiary not otherwise prohibited by this the 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 the Company or any Restricted Subsidiary in any manner material to the Company and its Restricted Subsidiaries; or any Restricted Subsidiary;
(vvi) with respect to a Restricted Subsidiary and (other than a Guarantor or Palm Shipping), 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 all, or substantially all, of the property and assets of, such Restricted Subsidiary;
(vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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, incurring, assuming entering into any agreement permitting or suffering to exist any providing for the incurrence of Liens otherwise permitted in Section 4.09 or 4.08, (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness (other than the Securities and the Subsidiary Guarantees) of the Company or any of its Restricted SubsidiariesSubsidiaries or (3) amending, modifying 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 such charter or similar arrangement or (B) to increase the rates paid by Palm Shipping to such vessel-owning Subsidiary under such charter or similar arrangement to the extent required to 53 62 service (x) Indebtedness for money borrowed, Incurred in good faith (as determined by the Board of Directors) and not with the purpose of evading the requirements of this covenant, in connection with the financing or the refinancing of Indebtedness of such Subsidiary and (y) expenses incurred by such Subsidiary in the ordinary course of business.
Appears in 1 contract
Samples: Indenture (Teekay Shipping Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (a) (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by to the Company or any other Restricted SubsidiarySubsidiary (A) on its Capital Stock or (B) with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, Subsidiary or (iiib) make loans or advances to the Company or any other Restricted Subsidiary or (ivc) transfer any of its property properties or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any , except for such encumbrances or restrictions:
restrictions existing under or by reasons of (i) encumbrances or restrictions existing on the Closing Issue Date to the extent and in this Indenture or any other agreements the manner such encumbrances and restrictions are in effect on the Closing Issue Date, (ii) the Indenture, the Notes and any extensionsthe Guarantees, refinancings(iii) the Credit Facility, renewals or replacements of such agreements; (iv) applicable law, (v) customary nonassignment provisions in leases, (vi) permitted Refinancing Indebtedness, provided that the encumbrances and restrictions contained in the agreements governing such Refinancing Indebtedness shall not be materially more restrictive than those contained in the agreements governing the Indebtedness being refinanced, (vii) customary restrictions imposed in connection with Purchase Money Indebtedness or Capital Lease Obligations permitted under Section 4.06 as long as such customary restrictions are not materially more restrictive than those set forth in the Credit Facility on the Issue Date (except that they may impose restrictions on the transfer of the asset so financed), (viii) 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;
(ii) existing under or by reason of applicable law;
(iii) existing agreements with respect to any Person or the property or assets of such Person Persons acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and Subsidiary which do not incurred in contemplation thereof, which encumbrances or restrictions are not applicable extend to any Person or the property Property or assets of any Person other than such Person or the property Property or assets of such Person so acquiredPersons, and any extensions, refinancings, renewals or replacements of the agreement containing such encumbrance or restriction; provided that the encumbrances and (ix) customary restrictions in any such extensions, refinancings, renewals security agreements 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 first paragraph of this Section 4.05, (A) 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, (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 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 do not, individually or in the aggregate, detract from the value of property or assets mortgages securing Indebtedness of the Company or any a Restricted Subsidiary in any manner material to the Company extent such restrictions restrict the transfer of the property subject to such security agreements and mortgages or any Restricted Subsidiary;
(vx) customary restrictions 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) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture, the Dollar Notes Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided 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;
(ii) 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;
(vi) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) 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 its the Company's ability to make principal or interest payments on the Notes, ; or
(Dvii) if the aggregate principal amount of such Indebtedness exceeds the greater of imposed in connection with a transaction described in clause (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 (ivf) of the first paragraph of this Section 4.05 in an amount not proviso 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") Asset Sale" and (E) relating solely to a Restricted Subsidiary that transfers assets to the Investments made by special purpose entity referred to therein; PROVIDED that the Company and its Restricted Subsidiaries in determines that any such Restricted Subsidiary are reasonably related encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the business of such Restricted Subsidiary; and
(vii) provisions contained in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basisNotes. 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 (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) 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. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements agreement in effect on the Closing Date, 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;
(ii) 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 first paragraph of this Section 4.054.06, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;
(vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 agreementany Development Company, (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 imposed pursuant to which all or in connection with any Indebtedness Incurred by such indebtedness in excess of such amount is outstanding expressly state that such Restricted Subsidiary shall be entitled Development Company 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 finance at least 50% of the consolidated net income total financing required for the development and construction of all of such Restricted Subsidiary Development Company's alternative access networks or any Indebtedness Incurred to refinance or replace such Indebtedness; provided that (after making adjustments thereto a) such Indebtedness (including such refinancing Indebtedness) is permitted to be Incurred under Section 4.03, (b) such encumbrances and restrictions are no more restrictive in any material respect than those encumbrances and restrictions existing under the nature of Tomen Facility as in effect on the adjustments referred to in the definition of "Adjusted Consolidated Net Income") Closing Date and (Ec) the Investments made by the such encumbrances and restrictions shall only apply to such Development Company and its Restricted Subsidiaries in for so long as such Restricted Subsidiary are reasonably related to the business of Indebtedness (or such Restricted Subsidiaryrefinancing Indebtedness) remains outstanding; andor 44
(vii) provisions contained in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any particular class 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 Capital Stock the total financing required for the development and construction of a Person 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 occurrence of an event of default under such Indebtedness (or refinancing Indebtedness), (b) such Indebtedness (including such refinancing Indebtedness) is 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 Tomen Facility as in effect on a pro rata basisthe 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 4.05 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 4.10 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Following the occurrence of the Termination and Release, the Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions provision shall not restrict or prohibit any encumbrances or restrictions:
: (i) existing on pursuant to: (A) this Indenture, the Closing Date in this Indenture Securities or any other agreements in effect on the Closing 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, refinancings, renewals or replacements of such agreementsany 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;
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;
; (iiiiv) 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, Subsidiary and existing at the time of such acquisition and not incurred in contemplation thereofacquisition, 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 acquired or any extensions, refinancings, renewals or replacements of the agreement containing such encumbrance or restrictionforegoing; 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;
; (ivv) in the case of clause (iv) of the first paragraph of this Section 4.055.04, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company and its Restricted Subsidiaries; or any Restricted Subsidiary;
(vvi) with respect to a Restricted Subsidiary and (other than Palm Shipping), 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 all, or substantially all, of the property and assets of, such Restricted Subsidiary;
(vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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 5.04 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming entering into any agreement permitting or suffering to exist any providing for the incurrence of Liens otherwise permitted in Section 4.09 or 5.02, (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness (other than the Securities) of the Company or any of its Restricted SubsidiariesSubsidiaries 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 such charter or similar arrangement or (B) to increase the rates paid by Palm Shipping to such vessel-owning Subsidiary under such charter or similar arrangement to the extent required to service (x) Indebtedness for money borrowed, Incurred in good faith (as determined by the Board of Directors) and not with the purpose of evading the requirements of this covenant, in connection with the financing or the refinancing of Indebtedness of such Subsidiary and (y) expenses incurred by such Subsidiary in the ordinary course of business.
Appears in 1 contract
Samples: Indenture (Teekay Shipping Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company Xxxxxx Publishing will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to of Xxxxxx Publishing to:
(i1) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, Stock;
(ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii2) make loans or advances to the Company Xxxxxx Publishing or any other Restricted Subsidiary or to pay any Indebtedness or other obligation owed to Xxxxxx Publishing or any other Restricted Subsidiary of Xxxxxx Publishing; or
(iv3) transfer any of its property or assets to the Company Xxxxxx Publishing or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date Subsidiary of Xxxxxx Publishing, except in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of each case for 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;
(ii) existing under or by reason of of:
(a) applicable law;
(iiib) 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 replacedIndenture Documents;
(ivc) in the case of clause (iv) of the first paragraph of this Section 4.05, (A) that restrict in a customary manner the subletting, non-assignment or transfer provisions of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue any lease governing a leasehold interest 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted SubsidiaryXxxxxx Publishing;
(vd) 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 ofany instrument governing Acquired Indebtedness, or property and assets of, such Restricted Subsidiary;
(vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 applicable to any Person, or the Holders properties or assets of any Person, other than is customary the Person or the properties or assets of the Person so acquired;
(e) the Tranche A Loan, the Tranche B Loan, the Refinanced Debt and the Working Capital Facility;
(f) an agreement governing other Senior Debt or Guarantor Senior Debt permitted to be incurred under this Indenture; provided, however, that, with respect to any agreement governing such other Senior Debt or Guarantor Senior Debt, the provisions relating to such encumbrance or restriction are no less favorable to Xxxxxx Publishing in comparable financings (any material respect as determined by the Company), (C) Board of Directors of Xxxxxx Publishing in its reasonable and good faith judgment than 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 Tranche A Loan as in effect on the making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.Issue Date;
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will shall not, and will shall not cause or permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or allow to become effective any consensual encumbrance or restriction of Payment Restriction with respect to any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that the encumbrances and restrictions in except for 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;
(ii) Payment Restriction existing under or by reason of (i) applicable law;
, (ii) customary non-assignment provisions in leases or other contracts entered into in the ordinary course of business and consistent with past practices, (iii) existing with respect to any Person or purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property so acquired, (iv) customary restrictions imposed on the transfer of copyrighted or patented materials, (v) the entering into of a contract for the sale or other disposition of assets, directly or indirectly, so long as such restrictions do not extend to assets that are not subject to such sale or other disposition, (vi) the terms of any agreement evidencing any Indebtedness of Restricted Subsidiaries that was permitted by this Indenture to be incurred that only restrict the transfer of the assets purchased with the proceeds of such Person acquired Indebtedness, (vii) the terms of the Working Capital Agreement in effect on the Issue Date and any similar Payment Restriction under any similar revolving credit facility or any replacement thereof, PROVIDED that such similar Payment Restriction is no more restrictive than the Payment Restriction in effect on the Issue Date and (viii) the terms of any agreement evidencing any Acquired Indebtedness that was permitted by this Indenture to be incurred, PROVIDED that such Payment Restriction only applies to assets that were subject to such restrictions prior to the acquisition of such assets 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 first paragraph of this Section 4.05, (A) 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, (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 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;
(vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary (other than the Guarantor) to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
: (i) existing on the Closing Date in this Indenture (including the Nortel Financing Agreements) or any other agreements in effect on the Closing Date, 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;
; (ii) 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
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, such Restricted Subsidiary;
Subsidiary during the period between the execution of such agreement and the closing thereunder; or (vi) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) 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 Securities than is customary in comparable financings (as determined in good faith by the Company), Board of Directors) and (C) the Company Board of Directors determines that any such encumbrance or restriction will not materially adversely affect its the Company's financial 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 making of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basisSecurities when due. 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 Subsidiaries that secure secure, in a manner permitted by this Indenture, Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Senior Guaranteed Convertible Notes Indenture (Impsat Fiber Networks Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. 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 suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to of the Company to:
(i1) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company Stock;
(2) make loans or any other Restricted Subsidiary, (ii) advances or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary, Subsidiary of the Company; or
(iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv3) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on Subsidiary of the Closing Date in this Indenture or any other agreements in effect on the Closing DateCompany, and any extensions, refinancings, renewals or replacements of except for 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;
(ii) existing under or by reason of of:
(a) applicable law, rule or regulation;
(iiib) existing with respect this Indenture;
(c) customary non-assignment provisions of any lease or license of any Restricted Subsidiary of the Company to any Person the extent such provisions restrict the transfer of the lease or license or the property leased or assets of such Person acquired by the Company or licensed thereunder;
(d) any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereofinstrument governing Acquired Indebtedness, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such the 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 first paragraph of this Section 4.05, (A) 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, (B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property properties or assets of the Company, Person so acquired;
(e) the Credit Agreement (and all replacements or substitutions thereof on terms no more adverse to the Holders and no less favorable or more onerous to the Company and its Restricted Subsidiaries) and the Collateral Agreements;
(f) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date (and all replacements or substitutions thereof on terms no more adverse to the Holders and no less favorable or more onerous to the Company and its Restricted Subsidiaries);
(g) restrictions on the transfer of assets subject to any Restricted Subsidiary not otherwise prohibited Lien permitted under this Indenture;
(h) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;
(i) 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;
(Cj) arising restrictions contained in the terms of the Purchase Money Indebtedness or Capitalized Lease Obligations not incurred in violation of this Indenture; provided, that such restrictions relate only to the assets financed with such Indebtedness;
(k) restrictions in other Indebtedness incurred in compliance with Section 4.08; provided that such restrictions, taken as a whole, are, in the good faith judgment of the Company’s Board of Directors, no more materially restrictive with respect to such encumbrances and restrictions than those contained in the existing agreements referenced in clauses (b), (e) and (f) above;
(l) restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(vm) with respect to a restrictions on the ability of any Foreign Restricted Subsidiary and imposed to make dividends or other distributions resulting from the operation of covenants contained in documentation governing Indebtedness of such Subsidiary permitted under this Indenture; or
(n) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock ofreferred to in clause (b), or property and assets of(d), such Restricted Subsidiary;
(vie) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2f) 10% of Consolidated EBITDA for above; provided, however, that the Four Quarter Period or any agreement pursuant provisions relating to which such Indebtedness 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 any such Indebtedness or agreement, (B) the encumbrance or restriction is not materially more disadvantageous are no less favorable to the Holders than is customary Company in comparable financings (any material respect as determined by the Company), (C) Board of Directors of the Company determines that any in their reasonable and good faith judgment than the provisions relating to 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 contained in excess of such amount is outstanding expressly state that such Restricted Subsidiary shall be entitled to take the actions agreements referred to in clauses such clause (ib), (d), (e) 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiariesf).
Appears in 1 contract
Samples: Indenture (CitiSteel PA, Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company WCI will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to to:
(i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company WCI or any other Restricted Subsidiary, ;
(ii) pay any Indebtedness owed to the Company 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
(iv) 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. The foregoing provisions shall not restrict prohibit any encumbrances or restrictions:
(i) existing on the Closing Issue Date in this Indenture or any other agreements agreement in effect on the Closing Issue Date, and any extensions, refinancings, renewals or replacements of such agreements; provided provided, however, 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;
(ii) 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 WCI 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company WCI or any Restricted Subsidiary in any manner material to the Company WCI or any Restricted Subsidiary;; or
(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, such Restricted Subsidiary;
(vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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 WCI or any Restricted Subsidiary from (1i) restricting the sale or other disposition of property or assets of WCI or any of its Restricted Subsidiaries that secure Indebtedness of WCI or any of its Restricted Subsidiaries or (ii) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in under Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries4.09.
Appears in 1 contract
Samples: Guaranteed Senior Secured Notes Indenture (Winstar Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company Garden State will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of Garden State to (i) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such or pay any Debt owed to Garden State or a Restricted Subsidiary owned by the Company or any other Restricted Subsidiaryof Garden State, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company Garden State or any other a Restricted Subsidiary of Garden State or (iviii) transfer any of its property properties or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing DateGarden State, 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 except for encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of (A) applicable law;
law or provisions in effect on the Issue Date, (iiiB) the Indenture, (C) agreements existing with respect to any Person on the Issue Date, (D) the Garden State Credit Facility, the Senior Subordinated Secured Notes or the property Notes, (E) customary non-assignment provisions of any lease governing a leasehold interest of Garden State or assets a Restricted Subsidiary of such Garden State or (F) any instrument governing or evidencing Acquired Debt of a Person acquired by the Company or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereofacquisition, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such Person or the property or assets of such Person so acquired, PROVIDED that such Debt, and any extensions, refinancings, renewals or replacements of the agreement containing such encumbrance or restriction; provided , is not incurred in connection with, or in contemplation of, such acquisition or (G) any encumbrances or restrictions contained in any Debt governing any refinancings of the Debt described in clause (C), PROVIDED that the encumbrances and restrictions contained in any such extensionsrefinancing agreement or amendment, refinancings, renewals supplement or replacements other modification are no not materially less favorable in any material respect to the Holders Noteholders than those encumbrances or and restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(iv) in the case of clause (iv) of the first paragraph of this Section 4.05, (A) 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, (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 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;
(vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiariesagreements.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company Issuer will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (iA) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Issuer or any other Restricted Subsidiary, (ii) pay any Indebtedness or other obligations owed to the Company Issuer or any other Restricted Subsidiary, (iii) make loans or advances to the Company Issuer or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
: (i) existing on the Vicap Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreementsany 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 holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
; (ii) arising in connection with the Incurrence of Indebtedness after the Vicap Closing Date; provided that such encumbrances or restrictions are required in order to effect such financing and are not more restrictive on the ability of the applicable Restricted Subsidiary to make the payments, distributions, loans, advances or transfers referred to above than necessary and customarily accepted; (iii) existing under or by reason of applicable law;
; (iiiiv) existing with respect to any Person or the property or assets of such Person acquired by the Company Issuer or any Restricted Subsidiary, Subsidiary and existing at the time of such acquisition and not incurred in contemplation thereofacquisition, which encumbrances or restrictions (A) 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 acquiredacquired and (B) were not put in place in anticipation of such acquisition, and any extensions, refinancings, renewals or replacements Refinancings of any of the agreement containing such encumbrance or restrictionforegoing; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements Refinancings are no less favorable in any material respect to the Holders holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
Refinanced; (ivv) in the case of clause (iv) of the first paragraph preceding paragraph, arising or agreed to in the ordinary course of this Section 4.05, business (A) 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, (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 Company, Issuer or any Restricted Subsidiary not otherwise prohibited by this the Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any IndebtednessIndebtedness and, and in each of cases (A), (B) or (C), that do not, individually or in the aggregate, detract from the value of property or assets of the Company Issuer or any Restricted Subsidiary in any manner material to the Company or any Issuer and its Restricted Subsidiary;
Subsidiaries, taken as a whole; (vvi) with respect to a Restricted Subsidiary or certain property or assets of 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) contained in Subsidiary or such property or assets, as the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 Subsidiarymay be; and
(vii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; or (viii) customary provisions contained in joint venture agreements or instruments which prohibit and other similar agreements entered into in the payment ordinary course of dividends or the making of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basisbusiness. Nothing contained in this Section 4.05 the preceding paragraph shall prevent the Company Issuer or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted by the "Limitation on Liens" covenant in Section 4.09 3.13 or (2) restricting the sale or other disposition of property or assets of the Company Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Company Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Vitro Sa De Cv)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company Issuers will not, and will not permit any of their Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of an Issuer to (ia)(i) pay dividends or make any other distributions permitted by applicable law to an Issuer or any Restricted Subsidiary of an Issuer (A) on any its Capital Stock of such Restricted Subsidiary owned by the Company or (B) with respect to any other interest or participation in, or measured by, its profits or (ii) repay any Indebtedness or any other obligation owed to an Issuer or any Restricted SubsidiarySubsidiary of an Issuer, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iiib) make loans or advances or capital contributions to the Company an Issuer or any other of its Restricted Subsidiary Subsidiaries or (ivc) transfer any of its property properties or assets to the Company an Issuer or any other of their Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing DateSubsidiaries, and any extensions, refinancings, renewals or replacements of except for 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;
(ii) existing under or by reason of applicable law;
(i) encumbrances or restrictions existing on the Issue Date to the extent and in the manner such encumbrances and restrictions are in effect on the Issue Date, (ii)(x) this Indenture, the Notes and the Guarantees and (y) the Senior Notes Indenture, the Senior Notes and the Senior Guarantees, (iii) existing with respect applicable law, (iv) the Senior Credit Facility, (v) any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such the Person acquired by (including any Subsidiary of the Company or any Restricted SubsidiaryPerson), 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, (vi) customary non-assignment provisions in leases or other agreements entered in the ordinary course of business and any extensionsconsistent with past practices, refinancings, renewals or replacements of the agreement containing such encumbrance or restriction(vii) Refinancing Indebtedness; provided that the encumbrances and such restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders more restrictive than those encumbrances or restrictions that are then -------- contained in effect and that are the agreements governing the Indebtedness being extended, refinanced, renewed renewed, replaced, defeased or replaced;
refunded, (ivviii) customary restrictions in security agreements or mortgages securing Indebtedness of an Issuer or a Restricted Subsidiary to the case of clause (iv) extent such restrictions restrict the transfer of the first paragraph of this Section 4.05, (A) 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, (B) existing by virtue of any transfer of, agreement subject 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 such security agreements and mortgages or (Cix) 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 the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(v) customary restrictions with respect to a Restricted Subsidiary and imposed of an Issuer 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) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Coaxial LLC)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company WCI will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to to:
(i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company WCI or any other Restricted Subsidiary, ;
(ii) pay any Indebtedness owed to the Company 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
(iv) 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. The foregoing provisions shall not restrict prohibit any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements agreement in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided provided, however, 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;
(ii) 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 WCI 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company WCI or any Restricted Subsidiary in any manner material to the Company WCI or any Restricted Subsidiary;; or
(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, such Restricted Subsidiary;
(vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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 WCI or any Restricted Subsidiary from (1i) restricting the sale or other disposition of property or assets of WCI or any of its Restricted Subsidiaries that secure Indebtedness of WCI or any of its Restricted Subsidiaries or (ii) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in under Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries4.09.
Appears in 1 contract
Samples: Guaranteed Senior Secured Notes Indenture (Winstar Communications Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not cause or permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to to:
(ia) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock (it being understood that the priority of such Restricted Subsidiary owned by any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the Company ability to make distributions on Capital Stock);
(b) make loans or any other Restricted Subsidiary, (ii) advances or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary, ; or
(iii) make loans or advances to the Company or any other Restricted Subsidiary or (ivc) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of ; except for 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;
(ii) existing under or by reason of of:
(1) applicable law;
(iii2) 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 replacedthis Indenture;
(iv3) the Credit Agreement and/or the documentation for the Credit Agreement;
(4) the Senior Notes and Senior Subordinated Notes and/or the documentation for the Senior Notes and Senior Subordinated Notes and/or documentation for the Senior Subordinated Notes, in the case of clause (iv) the Senior Subordinated Notes pending retirement of the first paragraph Senior Subordinated Notes within 45 days after the Issue Date using the net proceeds of this Section 4.05offering, together with cash on hand and available liquidity;
(A5) that restrict in a customary manner the subletting, non-assignment or transfer provisions of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue any lease governing a leasehold interest 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(v6) 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;
(7) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date;
(8) any other agreement entered into after the Issue Date which contains encumbrances and restrictions which are not materially more restrictive with respect to a any Restricted Subsidiary than those in effect with respect to such Restricted Subsidiary pursuant to agreements as in effect on the Issue Date;
(9) any instrument governing Indebtedness of a Foreign Restricted Subsidiary;
(10) customary restrictions on the transfer of any property or assets arising under a security agreement governing a Lien permitted under this Indenture;
(11) secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.03 and imposed Section 4.15 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(12) any agreement governing Refinancing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (2), (4), (6), (7) or (9) above; provided, however, that has been entered into for the provisions relating to such encumbrance or restriction contained in any such Refinancing Indebtedness are not materially more restrictive than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (2), (4), (6), (7) or (9);
(13) any agreement governing the sale or disposition of all any Restricted Subsidiary which restricts dividends and distributions pending such sale or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiarydisposition;
(vi14) contained in the terms of Indebtedness having any agreement, instrument or Lien placing encumbrances or restrictions applicable only to a Finance Subsidiary or an aggregate principal amount not in excess of the greater of Accounts Receivable Entity; or
(115) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement governing Indebtedness permitted to be incurred pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) if (A) ; provided that the encumbrance or restriction applies only in the event of a payment default or a default with respect provisions relating 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 contained in such Indebtedness, taken as a whole, are not materially affect its ability to make principal or interest payments on more restrictive than 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 the Credit Agreement or instruments which prohibit the payment of dividends or the making 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 Indenture as in effect on 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesIssue Date.
Appears in 1 contract
Samples: Indenture (Tenneco Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company Guarantor will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Guarantor or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company Guarantor or any other Restricted Subsidiary, (iii) make loans or advances to the Company Guarantor or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company Guarantor or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
: (i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, 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 Lenders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
; (ii) existing under or by reason of applicable law;
; (iii) existing with respect to any Person or the property or assets of such Person acquired by the Company 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, 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 first paragraph of this Section 4.05, Subsection 11(b)(3) (A) 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, (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 Company, Guarantor or any Restricted Subsidiary not otherwise prohibited by this Indenture Guarantee 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 the Company Guarantor or any Restricted Subsidiary in any manner material to the Company Guarantor 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, such Restricted Subsidiary;
Subsidiary during the period between the execution of such agreement and the closing thereunder; or (vi) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) 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 Lenders than is customary in comparable financings (as determined in good faith by the Company), Board of Directors) and (C) the Company Board of Directors determines that any such encumbrance or restriction will not materially adversely affect its the Guarantor's financial 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 making of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basisTerm Loans when due. Nothing contained in this Section 4.05 Subsection 11(b)(3) shall prevent the Company Guarantor or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 Subsection 11(b)(7) or (2) restricting the sale or other disposition of property or assets of the Company Guarantor or any of its Restricted Subsidiaries that secure secure, in a manner permitted by this Guarantee, Indebtedness of the Company Guarantor, or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
: (i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any 53 44 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;
; (ii) 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;
Subsidiary during the period between the execution of such agreement and the closing thereunder within three months of such execution; (vi) with respect to Restricted Subsidiaries in which, on and subsequent to the 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 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 not such an affiliate; or (viii) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) 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 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 its the Company's 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 making of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basisSecurities. 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any amendments, extensions, refinancings, renewals or replacements of such agreements; provided PROVIDED that the amendments, 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;
(ii) 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;; or
(vi) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) 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 its the Company's 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Dobson Wireline Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii3) make loans or advances to the Company or any other Restricted Subsidiary or (iv4) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i1) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; 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;
(ii2) existing under or by reason of applicable law;
(iii3) 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, acquired and any extensions, refinancings, renewals or replacements of the agreement containing such encumbrance or restrictionthereof; 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;
(iv4) in the case of clause (iv4) of the first paragraph of this Section 4.05, 4.06:
(A) 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, ,
(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 Company, Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or 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 the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(v5) 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;
(vi6) existing under 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 Securitization Entity or other Restricted Subsidiary that is a party to such Qualified Securitization Transaction; or
(7) contained in Indebtedness permitted to be Incurred subsequent to the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement Closing Date pursuant to which Section 4.03 herein; provided that any such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) if (A) the encumbrance encumbrances or restriction applies only in the event of a payment default restrictions are ordinary or a default customary with respect to a the type of Indebtedness Incurred (under the relevant circumstances) and that the Board of Directors or any 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) officer of the Company determines that any such encumbrance or restriction will shall not materially adversely affect its the Company’s 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 making 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 4.06 shall prevent the Company or any Restricted Subsidiary from from:
(1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or herein or
(2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Ingram Micro Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in the Credit Agreement, this Indenture Indenture, the Working Capital Facility or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that the EXHIBIT 4.17 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;
(ii) 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;; or
(vi) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) 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 its the Company's 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Acme Metals Inc /De/)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company Guarantor will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Guarantor or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company Guarantor or any other Restricted Subsidiary, (iii) make loans or advances to the Company Guarantor or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company Guarantor or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or of restrictions:
: (i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, 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 Lenders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
; (ii) existing under or by reason of applicable law;
; (iii) existing with respect to any Person or the property or assets of such Person acquired by the Company 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, 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 first paragraph of this Section 4.05, Subsection 1l(b)(3) (A) that restrict in a customary manner the subletting, assignment or transfer of any property or 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 Company, Guarantor or any Restricted Subsidiary not otherwise prohibited by this Indenture Guarantee 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 the Company Guarantor or any Restricted Subsidiary in any manner material to the Company Guarantor 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, such Restricted Subsidiary;
Subsidiary during the period between the execution of such agreement and the closing thereunder, or (vi) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) 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 Lenders than is customary in comparable financings (as determined in good faith by the Company), Board of Directors) and (C) the Company Board of Directors determines that any such encumbrance or restriction will not materially adversely affect its the Guarantor's financial 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 making of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basisTerm Loans when due. Nothing contained in this Section 4.05 Subsection 11(b)(3) shall prevent the Company Guarantor or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 Subsection 11(b)(7) or (2) restricting the sale or other disposition of property or assets of the Company Guarantor or any of its Restricted Subsidiaries that secure secure, in a manner permitted by this Guarantee, Indebtedness of the Company Guarantor or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company Issuers will not, and will not permit any of their Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of an Issuer to (ia)(i) pay dividends or make any other distributions permitted by applicable law to an Issuer or any Restricted Subsidiary of an Issuer (A) on any its Capital Stock of such Restricted Subsidiary owned by the Company or (B) with respect to any other interest or participation in, or measured by, its profits or (ii) repay any Indebtedness or any other obligation owed to an Issuer or any Restricted SubsidiarySubsidiary of an Issuer, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iiib) make loans or advances or capital contributions to the Company an Issuer or any other of its Restricted Subsidiary Subsidiaries or (ivc) transfer any of its property properties or assets to the Company an Issuer or any other of their Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing DateSubsidiaries, and any extensions, refinancings, renewals or replacements of except for 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;
(ii) existing under or by reason of applicable law;
(i) encumbrances or restrictions existing on the Issue Date to the extent and in the manner such encumbrances and restrictions are in effect on the Issue Date, (ii) (x) this Indenture, the Notes and the Guarantees and (y) the Discount Notes Indenture, the Discount Notes and the guarantees of the Discount Notes, (iii) existing with respect applicable law, (iv) the Senior Credit Facility, (v) any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such the Person acquired by (including any Subsidiary of the Company or any Restricted SubsidiaryPerson), 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, (vi) customary non-assignment provisions in leases or other agreements entered in the ordinary course of business and any extensionsconsistent with past practices, refinancings, renewals or replacements of the agreement containing such encumbrance or restriction(vii) Refinancing Indebtedness; provided that the encumbrances and such restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders more -------- restrictive than those encumbrances or restrictions that are then contained in effect and that are the agreements governing the Indebtedness being extended, refinanced, renewed renewed, replaced, defeased or replaced;
refunded, (ivviii) customary restrictions in security agreements or mortgages securing Indebtedness of an Issuer or a Restricted Subsidiary to the case of clause (iv) extent such restrictions restrict the transfer of the first paragraph of this Section 4.05, (A) 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, (B) existing by virtue of any transfer of, agreement subject 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 such security agreements and mortgages or (Cix) 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 the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(v) customary restrictions with respect to a Restricted Subsidiary and imposed of an Issuer 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) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Insight Communications of Central Ohio LLC)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, 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;
(ii) 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;; or
(vi) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) 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 its the Company's 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Allegiance Telecom Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company Lodgian will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Lodgian or any other Restricted Subsidiary, (ii2) pay any Indebtedness owed to the Company Lodgian or any other Restricted Subsidiary, (iii3) make loans or advances to the Company Lodgian or any other Restricted Subsidiary or (iv4) transfer any of its property or assets to the Company Lodgian or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i1) existing on the Closing Date in the Credit Agreement, this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; 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;
(ii2) existing under or by reason of applicable law;
(iii3) existing with respect to any Person or the property or assets of such Person acquired by the Company 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, 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;
(iv4) in the case of clause (iv4) of the first paragraph of this Section 4.054.06, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company Lodgian or any Restricted Subsidiary in any manner material to the Company Lodgian or any Restricted Subsidiary;
(v5) 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;
(vi6) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) if 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), Lodgian in good faith) and
(C) the Company Lodgian determines that any such encumbrance or restriction will not materially affect its the Company's ability to make principal or interest payments on the Notes, ; or
(D7) if relating to a Subsidiary Guarantor and contained in the aggregate principal amount terms of such any Indebtedness exceeds the greater of (1) $5 million and (2) 5% of Consolidated EBITDA for the Four Quarter Period, the documents or any agreement pursuant to which all such indebtedness in excess of such amount Indebtedness was issued if:
(A) the encumbrance or restriction is outstanding expressly state that such Restricted Subsidiary shall be entitled not materially more disadvantageous to take the actions referred to in clauses (i) through (iv) Holders of the first paragraph of this Section 4.05 Notes than is customary in an amount not to exceed 50% of the consolidated net income of such Restricted Subsidiary comparable financings (after making adjustments thereto as determined by Lodgian in the nature of the adjustments referred to in the definition of "Adjusted Consolidated Net Income"good faith) 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
(viiB) provisions contained in agreements Lodgian determines that any such encumbrance or instruments which prohibit restriction will not materially affect the payment of dividends Company's ability to make principal or interest payments on the making of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basisNotes. Nothing contained in this Section 4.05 4.06 shall prevent the Company Lodgian or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 4.10 or (2) restricting the sale or other disposition of property or assets of the Company Lodgian or any of its Restricted Subsidiaries that secure Indebtedness of the Company Lodgian or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i1) existing on the Closing Date in the Credit Agreement, this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; 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;
(ii2) existing under or by reason of applicable law, regulation, rule or order;
(iii3) 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, acquired and any extensions, refinancings, renewals or replacements of the agreement containing such encumbrance or restrictionthereof; 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;
(iv4) in the case of clause (iv4) of the first paragraph of this Section 4.05, :
(A) 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, ,
(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 Company, Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or 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 the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(v5) 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;
(vi6) contained 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 Indebtedness having an aggregate principal amount not in excess of the greater of any such encumbrances or restrictions are no more restrictive than those permitted under clause (1) $10 million above, and any extensions, refinancings, renewals or (2) 10% replacements of Consolidated EBITDA for such Indebtedness; and provided that the Four Quarter Period encumbrances or restrictions in any agreement pursuant to which such Indebtedness is outstanding (extensions, refinancings, renewals or replacements taken as a whole are no less favorable 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 any material 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 those encumbrances or restrictions that are then in comparable financings effect and that are being extended, refinanced, renewed or replaced;
(as determined by 7) existing under purchase money obligations for property acquired in the Company), (C) the Company determines ordinary course of business consistent with past practice that any such encumbrance impose encumbrances or restriction will not materially affect its ability to make principal or interest payments restrictions on the Notes, property so acquired of the nature described in clause (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 (iv4) 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 Subsidiary4.05; and
(vii) 8) customary provisions contained in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any particular class the distribution of Capital Stock of a Person assets or property in joint venture agreements and other than on a pro rata basissimilar 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 in by Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in the Credit Agreement, this Indenture or any other agreements in effect on the Closing DateDate (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, refinancings, renewals or replacements of such agreementsany of the foregoing; provided PROVIDED that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no not materially less favorable in any material respect taken as a whole to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law;
(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 first paragraph of this Section SECTION 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any and its Restricted SubsidiarySubsidiaries taken as a whole;
(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, such Restricted Subsidiary;
(vi) contained customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the terms ordinary course of business;
(vii) any agreement or instrument governing Indebtedness having an aggregate principal amount (whether or not in excess outstanding) of any Foreign Subsidiary of the greater of Company permitted to be incurred pursuant to clause (x) under SECTION 4.03 so long as (1) $10 million such agreement or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 instrument is not materially more disadvantageous applicable to any Person or the Holders property or assets of any Person other than is customary in comparable financings (as determined by such Foreign Subsidiary or the Company), (C) the Company determines that any such encumbrance property or restriction will not materially affect its ability to make principal or interest payments on the Notes, (D) if the aggregate principal amount assets of such Indebtedness exceeds the greater of (1) $5 million Foreign Subsidiary and its Foreign 49 Subsidiaries and (2) 5not more than 20% 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 Foreign Subsidiary's assets are located 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 SubsidiaryUnited States; and
(viiviii) provisions contained any restriction in agreements any agreement or instruments which prohibit the payment of dividends or the making of other distributions with respect to any particular class of Capital Stock instrument of a Person other than on Receivables Subsidiary governing a pro rata basisQualified Securitization Transaction. Nothing contained in this Section 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 by SECTION 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Jsce Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
: (i) existing on the Closing Date in the New Credit Facility, this Indenture Indenture, the ResNet Transaction Documents or any other agreements in effect on the Closing Date, 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;
; (ii) 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
; or (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, such Restricted Subsidiary;
(vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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, incurring, assuming or suffering to exist any Liens otherwise permitted in by the Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Second Supplemental Indenture (Lodgenet Entertainment Corp)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in the Credit Agreement, this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; 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;
(ii) 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, acquired and any extensions, refinancings, renewals or replacements of the agreement containing such encumbrance or restrictionthereof; 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;
(vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Steel Dynamics Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company Parent will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to of Parent to:
(i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Parent or any other Restricted Subsidiary, ;
(ii) pay any Indebtedness indebtedness owed to the Company Parent or any other Restricted Subsidiary, ;
(iii) make loans or advances to the Company Parent or any other Restricted Subsidiary or Subsidiary; or
(iv) transfer any of its property or assets to the Company Parent or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture Agreement, the other Loan Documents or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements replacements, taken as a whole, are no less favorable in any material respect to the Holders 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;
(iiiiv) existing with respect to any Person or the property or assets of such Person acquired by the Company Parent or any Restricted SubsidiarySubsidiary of Parent, 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 acquiredacquired and as the same may be amended, and any extensionsmodified, refinancingsrestated, renewals renewed, supplemented, refunded, replaced or replacements of the agreement containing such encumbrance or restrictionrefinanced; provided that the encumbrances and restrictions in any such extensionsamendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings, renewals or replacements taken as a whole, are no less favorable in any material respect to the Holders Lenders than those encumbrances or restrictions that are then in effect and that are being extendedso amended, modified, restated, renewed, supplemented, refunded, replaced or refinanced, renewed or replaced;
(ivv) in the case of clause (iv) of the first paragraph of this Section 4.05, 6.4,
(A) that restrict in a customary manner the 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 the Company, Parent or any Restricted Subsidiary of Parent not otherwise prohibited by this Indenture or 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 the Company Parent or any Restricted Subsidiary of Parent in any manner material to the Company Parent or any Restricted Subsidiary;
(vvi) with respect to a Restricted Subsidiary of Parent 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) contained in the terms Subsidiary of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 SubsidiaryParent; andor
(vii) imposed by customary provisions contained in joint venture agreements or instruments which prohibit and similar agreements that restrict the payment transfer of dividends or the making of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basisinterest in the joint venture. Nothing contained in this Section 4.05 6.4 shall prevent the Company Parent or any Restricted Subsidiary of Parent from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 6.7 or (2) restricting the sale or other disposition of property or assets of the Company Parent or any of its Restricted Subsidiaries that secure Indebtedness of the Company Parent or any of 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. The Company Issuers will not, and will not cause or permit any of their Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to of the Issuers to:
(i1) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock (it being understood that the priority of such Restricted Subsidiary owned by any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the Company or any other Restricted Subsidiary, ability to make distributions on Capital Stock);
(ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii2) make loans or advances to the Company Issuers or any other Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Issuers or any other Restricted Subsidiary of the Issuers (ivit being understood that the subordination of loans or advances made to the Issuers or any Restricted Subsidiary to other Indebtedness incurred by the Issuers or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(3) transfer any of its property or assets to the Company Issuers or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on Subsidiary of the Closing Date Issuers; except in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of each case for 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;
(ii) existing under or by reason of of
(a) applicable law, rule, regulation or order;
(iiib) existing with respect to this Indenture;
(c) customary non-assignment provisions of any Person or the property or assets of such Person acquired by the Company contract or any lease governing a leasehold interest of any Restricted Subsidiary, existing at Subsidiary of the time of such acquisition and not incurred in contemplation thereofIssuers;
(d) any instrument governing Acquired Indebtedness, which encumbrances encumbrance or restrictions are restriction is not applicable to any Person Person, or the property properties or assets of any Person Person, other than such the 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 first paragraph of this Section 4.05, (A) 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, (B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property properties or assets of the Company, or Person so acquired;
(e) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date;
(f) the Credit Agreement;
(g) restrictions on the transfer of assets subject to any Restricted Subsidiary not otherwise prohibited by Lien permitted under this Indenture imposed by the holder of such Lien;
(h) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person;
(Ci) arising customary provisions in shareholders', partnership, limited liability company and joint venture agreements and other similar agreements (in each case relating solely to the respective corporation, partnership, limited liability company, joint venture or agreed to similar entity or the equity interests therein) entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(vj) with respect an agreement governing Indebtedness incurred to a Restricted Subsidiary and imposed Refinance the Indebtedness issued, assumed or incurred 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) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 (ib), (d), (e), (f) through and (ivg) above; provided, however, that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Issuers in any material respect as determined by the Boards of Directors of the first paragraph of this Section 4.05 Issuers in an amount not their reasonable and good faith judgment than the provisions relating to exceed 50% of the consolidated net income of such Restricted Subsidiary (after making adjustments thereto encumbrance or restriction contained in the nature of the adjustments agreements referred to in the definition of "Adjusted Consolidated Net Income"such clauses (b), (d), (e), (f) 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 Subsidiaryg); and
(viik) provisions contained in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any particular class of Capital Stock of a Person other than restrictions on a pro rata basis. 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 cash or other disposition deposits imposed by customers under contracts entered into in the ordinary course of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiariesbusiness.
Appears in 1 contract
Samples: Indenture (Superior Essex Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to 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 shall not restrict any encumbrances or restrictions:
restrictions that: (i) existing on exist in the Closing Date in Bank Credit Agreement, this Indenture Indenture, the Subsidiary Guarantees or any other agreements in effect on the Closing Date, 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;
; (ii) existing exist under or by reason of applicable law;
; (iii) existing exist 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 first paragraph of this Section 4.054.05(a), (A) 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, (B) existing 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, Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising arise or are 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 the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;
(vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.-41- 45
Appears in 1 contract
Samples: Indenture (Agco Corp /De)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company Issuer will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Issuer or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company Issuer or any other Restricted Subsidiary, (iii) make loans or advances to the Company Issuer or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in the Credit Agreement, this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreementsany of the foregoing; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no not materially less favorable in any material respect taken as a whole to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets of such Person acquired by the Company Issuer or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company Issuer or any Restricted Subsidiary in any manner material to the Company or any Issuer and its Restricted SubsidiarySubsidiaries taken as a whole;
(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, such Restricted Subsidiary;
(vi) contained customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the terms ordinary course of business;
(vii) any agreement or instrument governing Indebtedness having an aggregate principal amount (whether or not in excess outstanding) of any Foreign Subsidiary of the greater of Issuer permitted to be incurred pursuant to clause (x) under Section 4.03(a) so long as (1) $10 million such agreement or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 instrument is not materially more disadvantageous applicable to any Person or the Holders property or assets of any Person other than is customary in comparable financings (as determined by such Foreign Subsidiary or the Company), (C) the Company determines that any such encumbrance property or restriction will not materially affect its ability to make principal or interest payments on the Notes, (D) if the aggregate principal amount assets of such Indebtedness exceeds the greater of (1) $5 million Foreign Subsidiary and its Foreign Subsidiaries and (2) 5not more than 20% 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 Foreign Subsidiary’s assets are located 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 SubsidiaryUnited States; and
(viiviii) provisions contained any restriction in agreements any agreement or instruments which prohibit the payment of dividends or the making of other distributions with respect to any particular class of Capital Stock instrument of a Person other than on Receivables Subsidiary governing a pro rata basisQualified Securitization Transaction. Nothing contained in this Section 4.05 shall prevent the Company Issuer or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in by Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Company Issuer or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Smurfit-Stone Container Enterprises Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company JLL will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company JLL or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company JLL or any other Restricted Subsidiary, (iii) make loans or advances to the Company JLL or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company JLL or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in the Credit Agreement, this Indenture or any other agreements in effect on the Closing Date, 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 of the Notes than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable lawlaw or government regulation;
(iii) existing with respect to any Person person or the property or assets of such Person person acquired by the Company 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 person or the property or assets of any Person person other than such Person person or the property or assets of such Person person so acquired, and any extensions, refinancings, renewals acquired 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 replacedbecomes a Restricted Subsidiary;
(iv) in the case of clause (iv) of the first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company JLL or any Restricted Subsidiary in any manner material to the Company JLL 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, 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 of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) if 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), JLL in good faith) and
(C) the Company JLL determines that any such encumbrance or restriction will not materially affect its the Company's 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.or
Appears in 1 contract
Samples: Indenture (Jones Lang Lasalle Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, 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;
(ii) 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 first paragraph of this Section 4.05, (A) 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, (B) 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;
(vi) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) 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 its the Company's 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will Issuers shall not, and will shall not permit any of their Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary of the Issuers to (ia)(i) pay dividends or make any other distributions permitted by applicable law to the Issuers or any Restricted Subsidiary of the Issuers (A) on any its Capital Stock of such Restricted Subsidiary owned by the Company or (B) with respect to any other interest or participation in, or measured by, its profits or (ii) repay any Indebtedness or any other Restricted Subsidiary, (ii) pay any Indebtedness obligation owed to the Company Issuers or any other Restricted SubsidiarySubsidiary of the Issuers, (iiib) make loans or advances or capital contributions to the Company Issuers or any other of their Restricted Subsidiary Subsidiaries or (ivc) transfer any of its property properties or assets to the Company Issuers or any other of their Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing DateSubsidiaries, and any extensions, refinancings, renewals or replacements of except for 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;
(ii) existing under or by reason of applicable law;
(i) encumbrances or restrictions existing on the Series A/B Issue Date to the extent and in the manner such encumbrances and restrictions were in effect on the Series A/B Issue Date (including without limitation pursuant to the Senior Credit Facility or under the Series A/B Notes or the Discount Notes), (ii) the Indenture, the Notes and the Guarantees, (iii) existing with respect applicable law, (iv) any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person Person, or the properties or assets of any Person, other than the Person, or the property or assets of such the Person acquired by (including any Subsidiary of the Company or any Restricted SubsidiaryPerson), 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, (v) customary non-assignment provisions in leases or other agreements entered in the ordinary course of business and any extensionsconsistent with past practices, refinancings, renewals or replacements of the agreement containing such encumbrance or restriction(vi) Refinancing Indebtedness; provided that the encumbrances and such payment restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders more restrictive than those encumbrances or restrictions that are then contained in effect and that are the agreements governing the Indebtedness being extended, refinanced, renewed renewed, replaced, defeased or replaced;
refunded, (ivvii) customary restrictions in the case of clause (iv) security agreements or mortgages securing Indebtedness of the first paragraph of this Section 4.05, (A) that Issuers or a Restricted Subsidiary to the extent such restrictions restrict in a customary manner the subletting, assignment or transfer of any the property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue of any transfer of, agreement subject 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 such security agreements and mortgages or (Cviii) 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 the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(v) customary restrictions with respect to a Restricted Subsidiary and imposed of the Issuers 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) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company So long as any of the Notes are Outstanding, Issuer will not, and will not permit any Restricted Subsidiary Person to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to Person to:
(i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary Person owned by the Company Parent or any other Restricted Subsidiary, Person;
(ii) pay any Indebtedness indebtedness owed to the Company Parent or any other Restricted Subsidiary, Person;
(iii) make loans or advances to the Company Parent or any other Restricted Subsidiary or Person; or
(iv) transfer any of its property or assets to the Company Parent or any other Restricted SubsidiaryPerson. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture Indenture, the Collateral Documents or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements replacements, 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 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;
(iiiiv) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted SubsidiaryPerson, 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 acquiredacquired and as the same may be amended, and any extensionsmodified, refinancingsrestated, renewals renewed, supplemented, refunded, replaced or replacements of the agreement containing such encumbrance or restrictionrefinanced; provided that the encumbrances and restrictions in any such extensionsamendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings, renewals or replacements 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 extendedso amended, modified, restated, renewed, supplemented, refunded, replaced or refinanced, renewed or replaced;
(ivv) in the case of clause (iv) of the first paragraph of this Section 4.05, 10.13,
(A) that restrict in a customary manner the 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 the Company, or any Restricted Subsidiary Person not otherwise prohibited by this Indenture or 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 the Company or any Restricted Subsidiary Person in any manner material to the Company or any Restricted SubsidiaryPerson;
(vvi) with respect to a Restricted Subsidiary Person 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) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 SubsidiaryPerson; andor
(vii) imposed by customary provisions contained in joint venture agreements or instruments which prohibit and similar agreements that restrict the payment transfer of dividends or the making of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basisinterest in the joint venture. Nothing contained in this Section 4.05 10.13 shall prevent the Company or any Restricted Subsidiary Person from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 10.16 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries Person that secure Indebtedness of the Company or any of its Restricted SubsidiariesPerson.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture, the Euro Notes Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided 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;
(ii) 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;
(vi) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) 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 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 its the Company's ability to make principal or interest payments on the Notes, ; or
(Dvii) if the aggregate principal amount of such Indebtedness exceeds the greater of imposed in connection with a transaction described in clause (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 (ivf) of the first paragraph of this Section 4.05 in an amount not proviso 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") Asset Sale" and (E) relating solely to a Restricted Subsidiary that transfers assets to the Investments made by special purpose entity referred to therein; PROVIDED that the Company and its Restricted Subsidiaries in determines that any such Restricted Subsidiary are reasonably related encumbrance or restriction will not materially affect the Company's ability to make principal or interest payments on the business of such Restricted Subsidiary; and
(vii) provisions contained in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basisNotes. 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 (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The So long as any of the Securities are outstanding, the Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary (other than the Guarantor) to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
: (i) existing on the Closing Date in this Indenture herein or any other agreements in effect on the Closing Date, 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;
; (ii) 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 first paragraph of this Section 4.05, (A) 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, (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 Company, Company or any Restricted Subsidiary not otherwise prohibited by this the 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 the Company or any Restricted Subsidiary in any manner material to 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 any or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;
Subsidiary during the period between the execution of such agreement and the closing thereunder within three months of such execution; (vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 Restricted Subsidiaries in such Indebtedness or agreementwhich, (B) the encumbrance or restriction is not materially more disadvantageous on and subsequent to the Holders than is customary in comparable financings (as determined by the Company)Closing Date, (C) the Company determines and other Restricted Subsidiaries only make Investments that any such encumbrance or restriction will not materially affect its ability are evidenced by unsubordinated promissory notes that bear a reasonable rate of interest and are payable prior to make principal or interest payments on the Notes, (D) if Stated Maturity of 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 Securities; provided that such Restricted Subsidiary shall be entitled to take encumbrances and restrictions expressly allow the actions payment of interest and principal on such promissory notes; or (vii) encumbrances or restrictions solely of the type referred to in clauses clause (iiii) through or (iv) of the first preceding paragraph that are contained in any stockholders' agreement, joint venture agreement or similar agreement among owners of this Section 4.05 in an amount not to exceed 50% Common Stock of the consolidated net income a Restricted Subsidiary; provided that such restrictions consist solely of requirements that transactions between such Restricted Subsidiary Subsidiaries and affiliates thereof 52 45 (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 including the Company and its Restricted Subsidiaries in Subsidiaries) be on fair and reasonable terms no less favorable to such Restricted Subsidiary are reasonably related to the business of such Restricted Subsidiary; and
(vii) provisions contained than could be obtained in agreements or instruments which prohibit the payment of dividends or the making of other distributions a comparable arm's-length transaction with respect to any particular class of Capital Stock of a Person other than on a pro rata basisthat is not such an affiliate. 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
: (i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, 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;
; (ii) 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, 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 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 first paragraph of this Section 4.05, 4.05 (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to 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, such Restricted Subsidiary;
; or (vi) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) 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 loss 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 not 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 will is not reasonably expected to materially affect its the Company's 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Knology Holdings Inc /Ga)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. 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 suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to to:
(i1) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock of such Restricted Subsidiary owned by the Company Stock;
(2) make loans or any other Restricted Subsidiary, (ii) advances or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary, ; or
(iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv3) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any , except for such encumbrances or restrictionsrestrictions existing:
(a) under applicable law, rule, regulation, order, license or permit;
(b) under the Indenture and the Collateral Agreements;
(c) by reason of customary non-assignment provisions of any lease of any Restricted Subsidiary to the extent such provisions restrict the transfer of the lease or the property leased thereunder;
(d) under 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;
(e) under the Credit Agreement;
(f) by reason of restrictions on the transfer of assets subject to any Permitted Lien;
(g) under customary agreements to sell assets or Capital Stock permitted to be sold under the Indenture pending the closing of such sale;
(h) under Purchase Money Indebtedness or Capitalized Lease Obligations permitted under the Indenture; provided, that such encumbrances and restrictions relate only to the assets financed with such Indebtedness;
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, 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;
(ii) existing under or by reason of applicable law;
(iii) existing restrictions on cash or other deposits under bona fide arrangements 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 first paragraph of this Section 4.05, (A) 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, (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 Company, or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to customers entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiaryconsistent with past practice;
(vj) with respect to a on any Foreign Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for under Indebtedness of such Subsidiary permitted under the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary;Indenture; or
(vik) contained under Refinancing Indebtedness incurred to Refinance the Indebtedness referred to in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of clause (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 Companyb), (Cd) or (e); provided, that the Company determines that any provisions relating to 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 contained in any such Indebtedness exceeds are no more adverse to the greater of (1) $5 million Holders and (2) 5% of Consolidated EBITDA for the Four Quarter Period, the documents pursuant no less favorable or more onerous 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 than the provisions relating to such Restricted Subsidiary are reasonably related to the business of such Restricted Subsidiary; and
(vii) provisions encumbrance or restriction contained in agreements or instruments which prohibit referred to in the payment of dividends or the making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiariesbeing Refinanced.
Appears in 1 contract
Samples: Indenture (Boston Gear LLC)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company Issuer will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to to:
(i1) pay dividends or make any other distributions permitted by applicable law Applicable Law on any Capital Stock of such Restricted Subsidiary owned by the Company Issuer or any other Restricted Subsidiary, ;
(ii2) pay any Indebtedness owed to the Company Issuer or any other Restricted Subsidiary, ;
(iii3) make loans or advances to the Company Issuer or any other Restricted Subsidiary or Subsidiary; or
(iv4) transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary. The foregoing provisions , provided, however, that this prohibition shall not restrict apply to any encumbrances or restrictions:
(ia) existing on imposed by this Indenture, the Closing Date in this Indenture or any other agreements in effect on Notes, the Closing Date, Note Guarantees 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 replacedSecurity Documents;
(iib) existing under or by reason of Applicable Law or governmental rule, regulation or order applicable lawother than solely on account of the action or inaction of the Issuer or a Restricted Subsidiary;
(iiic) existing with respect to any Person or the property or assets of such acquired from a Person acquired by which is merged with or into the Company Issuer or any Restricted Subsidiary, or by reason of any Liens 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 shall not be permitted by this covenant; provided further, that such Liens may not extend to any other property owned by the Issuer or any Restricted Subsidiary (other than improvements, accessions, upgrades, accessories and products and proceeds in respect of the property subject to such Liens at the time of such 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 anticipation of such acquisition and not incurred in contemplation thereofany extension, which encumbrances renewal or restrictions are not applicable to any Person replacement (or the property or assets of any Person other than such Person or the property or assets of such Person so acquired, and any successive extensions, refinancings, renewals or replacements replacements), in whole or in part, of the agreement containing any such encumbrance or restriction; provided that , so long as the encumbrances and restrictions in any terms are substantially identical to such extensions, refinancings, renewals encumbrance or replacements are no less favorable in any material restriction (other than with respect to the Holders than those encumbrances duration thereof); provided, however, that any such encumbrance or restrictions restriction created to secure or provide for the payment of any part of the purchase price of such Person shall not be permitted by this covenant; provided further, that are then in effect and that are being extended, refinanced, renewed such encumbrance or replacedrestriction may not extend to any other property owned by the Issuer or any Restricted Subsidiary;
(ive) in the case of clause encumbrances or restrictions addressed under Section 4.1(l)(3) or (iv) of the first paragraph of this Section 4.05, 4):
(Ai) 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, (B) existing 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, Issuer or any Restricted Subsidiary not otherwise prohibited by this Indenture;
(ii) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license 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;
(Cf) 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 the property or assets of the Company Issuer or any Restricted Subsidiary in any manner material to the Company or any Issuer and its Restricted SubsidiarySubsidiaries;
(vg) 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 encumbrances or restrictions restrict the transfer of 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 a Restricted Subsidiary and the duration thereof);
(j) 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) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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, 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 Issuer or any such Restricted Subsidiary pending the closing of its Restricted Subsidiaries such sale or disposition; provided that secure Indebtedness the sale or disposition is permitted under this Indenture; or
(k) 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 the Company or any of its Restricted Subsidiariesbusiness.
Appears in 1 contract
Samples: Indenture (Gran Tierra Energy Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will Issuer shall not, and will shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective or enter into any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i1) pay dividends or make any other distributions permitted by applicable law on any its Capital Stock of such Restricted Subsidiary owned by the Company Issuer or any Restricted Subsidiary or pay any Indebtedness or other obligation owed to the Issuer or any Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii2) make loans or advances to the Company Issuer or any other Restricted Subsidiary thereof or (iv3) transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary. The foregoing provisions .
(b) Section 4.15(a) shall not restrict any encumbrances or restrictionsapply to the following:
(i) existing any encumbrance or restriction in existence on the Closing Date Issue Date, including those contained in this the Term Loan Credit Facility, the 2022 Notes Indenture or any other agreement or documents entered into in connection with the Term Loan Credit Facility, the 2022 Notes Indenture or any amendments, modifications, restatements, renewals, increases, supplements or Refinancings, of any of the foregoing agreements in effect on the Closing Dateor documents, and or any extensionsother Credit Facility, refinancings, renewals or replacements of such agreements; provided that the encumbrances and restrictions in terms of such amendments, modifications, restatements, renewals, increases, supplements or Refinancings of any such extensionsother Credit Facility, refinancingsin the good-faith judgment of the Issuer, renewals are not, taken as a whole, materially more restrictive than the dividend or replacements are no less favorable other payment restrictions contained in any material respect to those agreements on the Holders than those encumbrances Issue Date or restrictions that are then in effect and that are being extended, refinanced, renewed or replacedRefinancings thereof;
(ii) existing under any encumbrance or by reason restriction pursuant to an agreement relating to an acquisition of applicable lawproperty (whether directly or through the purchase of Equity Interests of the Person owning such property), so long as the encumbrances or restrictions in any such agreement relate solely to the property so acquired (and are not or were not created in anticipation of or in connection with the acquisition thereof);
(iii) existing any encumbrance or restriction which exists with respect to any a Person that becomes a Restricted Subsidiary or merges with or into a Restricted Subsidiary on or after the property Issue Date, which is in existence at the time such Person becomes a Restricted Subsidiary, but not created in connection with or assets in anticipation of such Person acquired by the Company or any becoming a Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are is 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 replacedbecoming a Restricted Subsidiary;
(iv) any encumbrance or restriction pursuant to an agreement effecting a permitted Refinancing or extension of Indebtedness issued pursuant to an agreement containing any encumbrance or restriction referred to in Section 4.15(b)(i) through (iii), so long as the encumbrances and restrictions contained in any such Refinancing agreement are not, taken as a whole, in the case of clause (iv) good-faith judgment of the first paragraph of this Section 4.05Issuer, materially more restrictive than the encumbrances and restrictions contained in the agreements governing the Indebtedness being Refinanced;
(Av) that restrict in a customary manner the subletting, provisions restricting subletting or assignment or transfer of any property or 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 tocontract, or Lien on, any property or assets license of the Company, Issuer or any Restricted Subsidiary, customary provisions restricting the disposition of assets subject to a lease or license, or provisions in agreements that restrict the assignment of such agreement or any rights thereunder;
(vi) any encumbrance or restriction by reason of applicable law, rule, regulation or order;
(vii) any encumbrance or restriction under this Indenture, the Notes and the Note Guarantees;
(viii) any encumbrance or restriction under an agreement relating to a disposition of assets or Capital Stock, including, without limitation, any agreement for the sale or other disposition of or by a Subsidiary not otherwise prohibited that restricts distributions, loans or transfers by this Indenture that Subsidiary pending its sale or other disposition;
(Cix) arising restrictions on cash and other deposits or agreed to net worth imposed by customers or suppliers or required by insurance, surety or bonding companies, under contracts entered into in the ordinary course of business;
(x) customary provisions with respect to the disposition or distribution of assets or property in joint venture agreements, limited liability company agreements, partnership agreements, shareholder agreements, asset sale agreements, stock sale agreements, sale leaseback agreements and other similar agreements;
(xi) any instrument governing any Indebtedness or Capital Stock of a Person acquired by the Issuer or any Restricted Subsidiary as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was Incurred or issued in connection with or in contemplation of such acquisition), which encumbrance or restriction is not relating applicable to any IndebtednessPerson, and that do notor the properties or assets of any Person, individually other than the Person, or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary Person, so acquired, provided that, in any manner material the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to the Company or any Restricted Subsidiarybe Incurred;
(vxii) with respect to a Restricted Subsidiary and imposed pursuant to an agreement purchase-money obligations (including Capital Lease Obligations) for property acquired in the ordinary course of business that has been entered into for the sale or disposition of all or substantially all impose restrictions on that property so acquired of the Capital Stock of, or property and assets of, such Restricted Subsidiarynature described in Section 4.15(a)(3);
(vixiii) provisions of agreements relating to Liens permitted to be incurred or to exist under this Indenture, including under Section 4.7, that limit the right of the debtor to dispose of the assets subject to such Liens;
(xiv) Indebtedness Incurred or Equity Interests issued by an Restricted Subsidiary; provided that the restrictions contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million agreements or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) if instruments relating thereto (A) the encumbrance or restriction applies either (i) apply only in the event of a payment default or a default with respect to a financial covenant contained or (ii) shall not, taken as a whole, in such Indebtedness or agreementthe good faith judgment of the Board of Directors of the Issuer, materially adversely affect the Issuer’s ability to pay all principal, interest and premium, if any, on the Notes, and (B) are not, taken as a whole, in the encumbrance or restriction is not good-faith judgment of the Board of Directors of the Issuer, materially more disadvantageous to the Holders restrictive than is customary in comparable financings financings;
(as determined by the Company), (Cxv) the Company determines that any such encumbrance customary encumbrances 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 restrictions contained 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 agreements entered into in the nature ordinary course of the adjustments referred to business 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 Subsidiaryconnection with Hedging Obligations permitted under this Indenture; and
(viixvi) provisions contained any other agreement governing Indebtedness entered into after the Issue Date that contains encumbrances and restrictions that are not, taken as a whole, in agreements or instruments which prohibit the payment good-faith judgment of dividends or the making Board of other distributions Directors of the Issuer, materially more restrictive than those in effect on the Issue Date with respect to any particular class of Capital Stock of a Person other than that Restricted Subsidiary pursuant to agreements in effect on a pro rata basis. the Issue Date.
(c) Nothing contained in this Section 4.05 4.15 shall prevent the Company Issuer or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in compliance with Section 4.09 4.7 or (2) restricting the sale or other disposition of property or assets of the Company Issuer or any of its Restricted Subsidiaries Subsidiary that secure Indebtedness of the Company Issuer or any of its Restricted SubsidiariesSubsidiary Incurred in accordance with Sections 4.6 and Section 4.7 in this Indenture.
Appears in 1 contract
Samples: Indenture (FTS International, Inc.)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company will may not, and will may not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to to:
(i) pay dividends (in cash or otherwise) or make any other distributions permitted by applicable law on any in respect of its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) Subsidiary of the Company or pay any Indebtedness Debt or other obligation owed to the Company or any other Restricted Subsidiary, ;
(iiiii) make loans or advances to the Company or any other Restricted Subsidiary or Subsidiary; or
(iviii) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict .
(b) Notwithstanding the foregoing, the Company may, and may permit any encumbrances Restricted Subsidiary to, suffer to exist any such encumbrance or restrictionsrestriction:
(i) existing on the Closing Date in this Indenture or pursuant to any other agreements agreement in effect on the Closing Issue Date, 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;
(ii) pursuant to an agreement relating to any Debt Incurred by a Person (other than a Restricted Subsidiary of the Company existing under on the Issue Date or by reason any Restricted Subsidiary carrying on any of the businesses of any such Restricted Subsidiary) prior to the date on which such Person became a Restricted Subsidiary of the Company and outstanding on such date and not Incurred in anticipation of becoming a Restricted Subsidiary, which encumbrance or restriction is not applicable lawto any Person, or the properties or assets of any Person, other than the Person so acquired;
(iii) existing with respect pursuant to any Person an agreement effecting a renewal, extension, refunding or refinancing of Debt Incurred pursuant to an agreement referred to in clause 4.08(b)(i) or (ii); provided, however, that the property provisions contained in such renewal, extension, refunding 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 refinancing agreement relating 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 restriction are no not materially less favorable in any material respect to the Holders aggregate than those encumbrances or restrictions that are then the provisions contained in effect the agreement the subject thereof, as determined in good faith by the Board of Directors and that are being extended, refinanced, renewed or replacedevidenced by a resolution of the Board of Directors filed with the Trustee;
(iv) pursuant to this Indenture, the Notes and any Subsidiary Guarantees or any other instrument governing debt securities of the Company Incurred in compliance with Section 4.06 that are no more restrictive, taken as a whole, than those contained in this Indenture, the Notes and the Subsidiary Guarantees;
(v) in the case of clause 4.08(b)(iii), pursuant to restrictions contained in any security agreement (ivincluding a capital lease) securing Debt of a Restricted Subsidiary otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the first paragraph property subject to such security agreement;
(vi) in the case of this Section 4.05clause 4.08(b)(iii), (A) that restrict in a pursuant to 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, (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 Company, or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to nonassignment provisions entered into in the ordinary course of business, not relating to any Indebtedness, business in leases and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material other contracts to the Company extent such provisions restrict the transfer or subletting of any Restricted Subsidiarysuch lease or the assignment of rights under any such contract;
(vvii) with respect to a Restricted Subsidiary and Subsidiary, imposed pursuant to an any agreement that which 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) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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, provided that consummation of such transaction would not result in an Event of Default or an event that, with the passing of time or the giving of notice or both, would constitute an Event of Default, that such restriction terminates if such transaction is closed or abandoned and that the closing or abandonment of such transaction occurs within one year of the date such agreement was entered into; andor
(viiviii) provisions contained in agreements which is the result of applicable corporate law or instruments which prohibit regulation relating to the payment of dividends or the making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiariesdistributions.
Appears in 1 contract
Samples: Indenture (Russel Metals Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, 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;
(ii) 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, Subsidiary and existing at the time of such acquisition and not incurred in contemplation thereofacquisition, 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;; or
(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, such Restricted Subsidiary;
(vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making of other distributions with respect to any particular class of Capital Stock of a Person other than on a pro rata basis. 52 45 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Powertel Inc /De/)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company Parent will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to to:
(i1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company to Parent or any other Restricted Subsidiary, (ii) 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 (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(ia) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, 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;its Capital Stock or
(iib) existing under or by reason of applicable law;
(iii) existing with respect to any Person other interest or the property participation in, or assets of such Person acquired by the Company or any Restricted Subsidiarymeasured by, 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 replacedits profits;
(iv2) in the case of clause (iv) of the first paragraph of this Section 4.05, (A) that restrict in a customary manner the subletting, assignment or transfer of repay any property or 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 Company, Indebtedness or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed other Obligation owed 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 the Company or any Restricted Subsidiary in any manner material to the Company Parent or any Restricted Subsidiary;
(v3) make loans or advances or capital contributions to Parent or any Restricted Subsidiary; or
(4) transfer any of its properties or assets to Parent or any Restricted Subsidiary; except for such encumbrances or restrictions existing under or by reason of:
(1) the Senior Credit Facility as 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;
(2) encumbrances or restrictions existing on the Issue Date to the extent and in the manner 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) this Indenture, the Notes and the Guarantees;
(4) applicable law;
(5) 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 property or assets of the Person (including any Subsidiary of the Person), so acquired;
(6) customary non-assignment provisions in leases, licenses or other agreements entered in the ordinary course of business and consistent with past practices;
(7) Refinancing Indebtedness; provided that 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 Restricted Subsidiary to the extent such restrictions restrict the transfer of the property subject to such security agreements and mortgages;
(9) customary restrictions with respect to a Restricted Subsidiary and imposed (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 of, or property and assets of, such Restricted Subsidiary;
(vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 other than any Issuer);
(10) customary restrictions imposed on the nature transfer of the adjustments referred to in the definition of "Adjusted Consolidated Net Income"copyrighted or patented materials; or
(11) customary restrictions under Sale and Lease-Back Transactions that comply with Section 4.15 and that either (Ei) the Investments made by the Company and its Restricted Subsidiaries in such Restricted Subsidiary are reasonably related apply to the business assets being transferred only, or (ii) apply only to the Guarantor or Issuer that is the subject of such Restricted Subsidiary; and
(vii) provisions contained Sale and Lease-Back Transaction and Parent determines in agreements good faith at the time such encumbrance or instruments which prohibit restriction is created that such encumbrance or restriction does not materially and adversely affect the payment of dividends or Issuers’ ability to pay principal of, and interest on, the making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesNotes.
Appears in 1 contract
Samples: Indenture (3055854 Nova Scotia Co)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company Issuer will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company Issuer or any other Restricted Subsidiary, (ii) pay any Indebtedness or other obligations owed to the Company Issuer or any other Restricted Subsidiary, (iii) make loans or advances to the Company Issuer or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company Issuer or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
: (i) existing on the Closing Issue Date in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreementsany 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 not materially more restrictive than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
on the Issue Date; (ii) arising in connection with the Incurrence of Indebtedness of Restricted Subsidiaries after the Issue Date; provided, that such encumbrances or restrictions are not materially more restrictive than encumbrances or restrictions in effect on the Issue Date and are necessary and customarily accepted in order to effect such financing; (iii) existing under or by reason of applicable law;
; (iiiiv) existing with respect to any Person or the property or assets of such Person acquired by the Company Issuer or any Restricted Subsidiary, Subsidiary and existing at the time of such acquisition and not incurred in contemplation thereofacquisition, which encumbrances or restrictions (A) 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 acquiredacquired and (B) were not put in place in anticipation of such acquisition, and any extensions, refinancings, renewals or replacements Refinancings of any of the agreement containing such encumbrance or restrictionforegoing; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements Refinancing are no less favorable in any material respect to the Holders holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
Refinanced; (ivv) in the case of clause (iv) of the first paragraph preceding paragraph, arising or agreed to in the ordinary course of this Section 4.05, business (A) 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, (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 Company, 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 IndebtednessIndebtedness and, and in each of cases (A), (B) or (C), that do not, individually or in the aggregate, detract from the value of property or assets of the Company Issuer or any Restricted Subsidiary in any manner material to the Company or any Issuer and its Restricted Subsidiary;
Subsidiaries, taken as a whole; (vvi) with respect to a Restricted Subsidiary or certain property or assets of 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) contained in Subsidiary or such property or assets, as the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 Subsidiarymay be; and
(vii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; or (viii) customary provisions contained in joint venture agreements or instruments which prohibit and other similar agreements entered into in the payment ordinary course of dividends or the making of other distributions business consistent with respect to any particular class of Capital Stock of a Person other than on a pro rata basispast practice. Nothing contained in this Section 4.05 the preceding paragraph shall prevent the Company Issuer or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in by Section 4.09 3.13 or (2) restricting the sale or other disposition of property or assets of the Company Issuer or any of its Restricted Subsidiaries that secure Indebtedness of the Company Issuer or any of its Restricted SubsidiariesSubsidiaries provided such restriction is otherwise permitted by Section 3.13.
Appears in 1 contract
Samples: Indenture (Vitro Sa De Cv)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not cause or permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, create or otherwise cause or suffer permit to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to to:
(ia) pay dividends or make any other distributions permitted by applicable law on any or in respect of its Capital Stock (it being understood that the priority of such Restricted Subsidiary owned by any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the Company ability to make distributions on Capital Stock);
(b) make loans or any other Restricted Subsidiary, (ii) advances or to pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary, ; or
(iii) make loans or advances to the Company or any other Restricted Subsidiary or (ivc) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of ; except for 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;
(ii) existing under or by reason of of:
(1) applicable law;
(iii2) 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 replacedthis Indenture;
(iv3) the Credit Agreement and/or the documentation for the Credit Agreement;
(4) the Senior Notes and Senior Subordinated Notes and/or the documentation for the Senior Notes and Senior Subordinated Notes and the Senior Secured Notes and/or documentation for the Senior Secured Notes, in the case of clause (iv) the Senior Secured Notes pending redemption of the first paragraph Senior Secured Notes within 45 days after the Issue Date using the net proceeds of this Section 4.05, offering;
(A5) that restrict in a customary manner the subletting, non-assignment or transfer provisions of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue any lease governing a leasehold interest 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;
(v6) 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;
(7) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date;
(8) any other agreement entered into after the Issue Date which contains encumbrances and restrictions which are not materially more restrictive with respect to a any Restricted Subsidiary than those in effect with respect to such Restricted Subsidiary pursuant to agreements as in effect on the Issue Date;
(9) any instrument governing Indebtedness of a Foreign Restricted Subsidiary;
(10) customary restrictions on the transfer of any property or assets arising under a security agreement governing a Lien permitted under this Indenture;
(11) secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.03 and imposed Section 4.15 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(12) any agreement governing Refinancing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (2), (4), (6), (7) or (9) above; provided, however, that has been entered into for the provisions relating to such encumbrance or restriction contained in any such Refinancing Indebtedness are not materially more restrictive than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (2), (4), (6), (7) or (9);
(13) any agreement governing the sale or disposition of all any Restricted Subsidiary which restricts dividends and distributions pending such sale or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiarydisposition;
(vi14) contained in the terms of Indebtedness having any agreement, instrument or Lien placing encumbrances or restrictions applicable only to a Finance Subsidiary or an aggregate principal amount not in excess of the greater of Accounts Receivable Entity; or
(115) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement governing Indebtedness permitted to be incurred pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) if (A) ; provided that the encumbrance or restriction applies only in the event of a payment default or a default with respect provisions relating 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 contained in such Indebtedness, taken as a whole, are not materially affect its ability to make principal or interest payments on more restrictive than 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 the Credit Agreement or instruments which prohibit the payment of dividends or the making 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 Indenture as in effect on 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted SubsidiariesIssue Date.
Appears in 1 contract
Samples: Indenture (Tenneco Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will may not, and will may not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) to pay dividends (in cash or otherwise) or make any other distributions permitted by applicable law on any in respect of its Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) Subsidiary or pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary, ; (iiiii) to make loans or advances to the Company or any other Restricted Subsidiary Subsidiary; or (iviii) to transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict Notwithstanding the foregoing, the Company may, and may permit any encumbrances Restricted Subsidiary to, suffer to exist any such encumbrance or restrictionsrestriction:
(ia) existing on the Closing Date in this Indenture or pursuant to any other agreements agreement in effect on the Closing DateIssue Date as described in Schedule III hereto;
(b) pursuant to an agreement relating to any Indebtedness Incurred by a Person (other than a Restricted Subsidiary existing on the Issue Date or any Restricted Subsidiary carrying on any of the businesses of any such Restricted Subsidiary) prior to the date on which such Person became a Restricted Subsidiary and outstanding on such date and not Incurred in anticipation of becoming a Restricted Subsidiary, and which encumbrance or restriction is not applicable to any extensionsPerson, refinancingsor the properties or assets of any Person, renewals other than the Person so acquired;
(c) pursuant to an agreement effecting a renewal, extension, refunding or replacements refinancing of such agreements; provided Indebtedness Incurred pursuant to an agreement referred to in clause (a) or (b) above, PROVIDED, HOWEVER, that the encumbrances and restrictions provisions contained in any such extensionsrenewal, refinancingsextension, renewals refunding or replacements refinancing agreement relating to such encumbrance or restriction are no less favorable more restrictive in any material respect to than the Holders than those encumbrances or restrictions that are then provisions contained in effect the agreement the subject thereof, as determined in good faith by the Board of Directors of the Company and that are being extended, refinanced, renewed or replacedevidenced by a Board Resolution;
(ii) 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;
(ivd) in the case of clause (iviii) above, restrictions contained in any security agreement (including a capital lease) securing Indebtedness of a Restricted Subsidiary otherwise permitted under the Indenture, but only to the extent such restrictions restrict the transfer of the first paragraph property subject to such security agreement;
(e) in the case of this Section 4.05clause (iii) above, (A) 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, (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 Company, or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to nonassignment provisions entered into in the ordinary course of business, not relating to any Indebtedness, business consistent with past practices in leases and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material other contracts to the Company extent such provisions restrict the transfer or subletting of any Restricted Subsidiarysuch lease or the assignment of rights under any such contract;
(vf) any restriction with respect to a Restricted Subsidiary and imposed pursuant to an agreement that which has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, of such Restricted Subsidiary;, provided that consummation of such transaction would not result in a Default or an Event of Default, that such restriction terminates if such transaction is closed or abandoned and that the closing or abandonment of such transaction occurs within one year of the date such agreement was entered into; or
(vig) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 the result of applicable corporate law or regulation relating 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiariesdistributions.
Appears in 1 contract
Samples: Indenture (Emergent Group Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, 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;
(ii) 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 first paragraph of this Section 4.05, (A) 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, (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 Company, 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 do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;; 45 39
(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, such Restricted Subsidiary;; or
(vi) contained in the terms of any Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness is outstanding (in each case Incurred by a Restricted Subsidiary in compliance with Section 4.03) 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 its the Company's 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 making 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, 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 Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
Appears in 1 contract
Samples: Indenture (Allegiance Telecom Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company will shall not, and will shall not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any kind of consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to to:
(i1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, ;
(ii2) pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary, ;
(iii3) make loans or advances to the Company or any other Restricted Subsidiary or Subsidiary; or
(iv4) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions:
(i1) existing on the Closing Issue Date in this Indenture the Credit Agreement, the Indenture, or any other agreements in effect on the Closing Issue Date, and any extensions, refinancings, renewals renewals, or replacements of such agreementsany of the foregoing; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals 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 renewed, or replaced;
(ii2) existing under or by reason of applicable law;
(iii3) existing with respect to any Person person or the property or assets of such Person person acquired by the Company or any Restricted Subsidiary, Subsidiary and existing at the time of such acquisition and not incurred in contemplation thereofacquisition, which encumbrances or restrictions (i) are not applicable to any Person person or the property or assets of any Person person other than such Person person or the property or assets of such Person person so acquiredacquired and (ii) were not put in place in anticipation of such acquisition, and any extensions, refinancings, renewals renewals, or replacements of any of the agreement containing such encumbrance or restrictionforegoing; provided PROVIDED that the encumbrances and restrictions in any such extensions, refinancings, renewals 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 renewed, or replaced;
(iv4) in the case of clause (iv4) of the first paragraph of this Section 4.05, covenant;
(Ai) that restrict in a customary manner the subletting, assignment assignment, or transfer of any property or asset that is a lease, license, conveyance conveyance, or contract or similar property or asset, ;
(Bii) 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, Company or any Restricted Subsidiary not otherwise prohibited by this Indenture the Indenture; or
(iii) not relating to any Indebtedness, and, in each of cases (i), (ii), or (C) iii), arising or agreed to in the ordinary course of business, not relating to any Indebtedness, business and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary;; or
(v5) 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) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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 the preceding paragraph shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming assuming, or suffering to exist any Liens otherwise permitted in by Section 4.09 4.14 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries.
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Samples: Indenture (Avado Brands Inc)
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. The Company WCI will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to to:
(i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company WCI or any other Restricted Subsidiary, ;
(ii) pay any Indebtedness owed to the Company 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
(iv) 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. The foregoing provisions shall not restrict prohibit any encumbrances or restrictions:
(i) existing on the Closing Date in this Indenture Agreement or any other agreements agreement in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided provided, however, 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;
(ii) 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 WCI 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 first paragraph of this Section 4.056.03, (A) 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, (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 Company, WCI or any Restricted Subsidiary not otherwise prohibited by this Indenture 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 the Company WCI or any Restricted Subsidiary in any manner material to the Company WCI or any Restricted Subsidiary;; or
(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, such Restricted Subsidiary;
(vi) contained in the terms of Indebtedness having an aggregate principal amount not in excess of the greater of (1) $10 million or (2) 10% of Consolidated EBITDA for the Four Quarter Period or any agreement pursuant to which such Indebtedness 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 making 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 6.03 shall prevent the Company WCI or any Restricted Subsidiary from (1i) restricting the sale or other disposition of property or assets of WCI or any of its Restricted Subsidiaries that secure Indebtedness of WCI or any of its Restricted Subsidiaries or (ii) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in under Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries6.07.
Appears in 1 contract
