Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may: (i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements; (ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount; (iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock; (iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and (v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.
Appears in 2 contracts
Samples: Credit Agreement (Boyds Collection LTD), Credit Agreement (Boyds Collection LTD)
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that Company may make scheduled payments of principal and interest or mandatory prepayments of principal (including through the exercise of remedies) from time to time on Designated Indebtedness; and provided, further, that so long as no Event of Default or Potential Event of Default has occurred and is continuing continuing, or would be caused thereby, Borrower mayresult therefrom:
(i) repurchase shares Company may prepay Designated Indebtedness from the proceeds of its capital stock Permitted Extension Indebtedness or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreementsOther Permitted Indebtedness;
(ii) repurchaseCompany may make Restricted Junior Payments with respect to Company Common Stock not to exceed in any Fiscal Year, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amountlesser of 20% of Consolidated Net Income for such Fiscal Year and $15 million;
(iii) purchase, redeem Company may repurchase Company Common Stock in an amount not to exceed in any Fiscal Year $15 million for purposes of establishing or otherwise acquire shares of common stock of Borrower or warrants or options contributing to acquire an employee compensation plan; provided that any such shares with proceeds received repurchased Company Common Stock resold to employees of Company shall, to the extent of the price paid for such Company Common Stock by Borrower such employee, be excluded from substantially concurrent equity contributions or issuances the calculation of new shares of its common stockthe $15 million limit set forth above;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights Company may apply Equity Proceeds to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms prepay Designated Indebtedness;
(v) Company and provisions (taken as a whole, and taking into account AFL III shall be permitted to consummate the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged thereforAFL III Restructuring; and
(vvi) make other Restricted Junior PaymentsCompany may repurchase or redeem all or any portion of the Senior Notes for aggregate cash consideration not to exceed, when aggregated with any "change of control" put payments arising as a result of the Holding Company Reorganization, $75,000,000; PROVIDED that on the date provided that, (the "DECLARATION DATE"A) of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant after giving effect to the terms of this clause proposed repurchase or redemption, Company shall have not less than $150,000,000 in Cash or Cash Equivalents on its balance sheet and (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (XB) the Consolidated Leverage Ratio (calculated on a pro forma basis as of if the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared proposed repurchase or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending redemption had been consummated on the last day of the Fiscal Quarter most recently endedrecent four fiscal quarter period) shall not exceed the lower of 4.25:1.00 or the ratio required to be met in accordance with subsection 6.6B for the immediately succeeding fiscal quarter end.
Appears in 2 contracts
Samples: Credit Agreement (Atlas Air Inc), Credit Agreement (Atlas Air Inc)
Restricted Junior Payments. Borrower Directly or indirectly through any manner or means nor shall not, and shall not it permit any of its Subsidiaries to, Affiliates directly or indirectlyindirectly through any manner or means, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior PaymentPayment except that (a) any Subsidiary of the Borrower may declare and pay dividends or make other distributions ratably to the Borrower or any Wholly-Owned Subsidiary Guarantor; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, (b) the Borrower may:
(i) repurchase shares may refinance the Indebtedness under the Second Lien Credit Agreement in accordance with the terms of its capital stock or the Intercreditor Agreement, (ii) may make regularly scheduled payments of any corporate parent (together with options or warrants interest in respect of any thereofIndebtedness permitted by Section 6.01(c) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and or under the Second Lien Credit Agreement in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements the indenture governing such notes or shareholder agreements;
the Second Lien Credit Agreement, as applicable, (iiiii) may prepay the Second Lien Term Loans with Declined Proceeds, as expressly allowed pursuant to Section 2.12(b) hereof, (iv) if the First Lien Leverage Ratio is less than 2.25:1.00, may repurchase, repay, redeem, defease or otherwise prepay retire any other outstanding Indebtedness permitted under Section 6.01(c) or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto (n) with the Available Amount Usage shall not exceed proceeds of the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a wholeIncremental Term Loans, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Paymentsmay repurchase, repay, redeem, defease or retire any outstanding Indebtedness permitted under Section 6.01(c) or (n) in; PROVIDED provided that the aggregate amount not torepurchased, repaid redeemed, defeased or retired after the Restatement Effective Date in reliance on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) shall not exceed $25,000,000; in the aggregate; and (vi) within 180 days of the Restatement Effective Date, may prepay the Second Lien Term Loans with the remaining proceeds of the Restatement Effective Date Term Loans after giving effect to the Restatement Effective Date Refinancing, (c) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the making Borrower may make Restricted Junior Payments to Holdings (i) in an aggregate amount not to exceed $2,000,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses incurred in the ordinary course of business, (ii) for so long as Holdings and its Subsidiaries are members of the same affiliated group of corporations within the meaning of Section 1504 of the Internal Revenue Code and the Treasury Regulations promulgated thereunder (and any other similar provision of state or local income tax law) to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries as part of such an affiliated group of which Holdings is the common parent within the meaning of Section 1504 of the Internal Revenue Code, provided that such Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) not exceed the aggregate amount that would be payable by the Borrower and its Subsidiaries if they filed Tax returns on a stand-alone basis, in each case so long as Holdings applies the amount of any such Restricted Junior PaymentPayment for such purpose, when added (iii) in an aggregate amount not to the exceed $1,000,000 in any twelve-month period, provided that any unused amount may be carried forward to up to a maximum aggregate amount of all $2,500,000 in any twelve-month period to permit Holdings to purchase common stock or common stock options of Holdings from present or former officers or employees of Holdings or any of its Subsidiaries upon the death, disability or termination of employment of such officer or employee, and (d) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Borrower may make Restricted Junior Payments previously declared Payments, including payments to Holdings (and Holdings may distribute to its shareholders) (i) in an aggregate amount not to exceed $20,000,00023,000,000 and (ii) in additional amounts not to exceed the then Available Amount so long as the Leverage Ratio is less than or (without duplication) paid by Borrower pursuant equal to this clause (v) during 4.00:1.00 after giving effect thereto. For the period commencing on the Closing Date and ending on the Declaration Dateavoidance of doubt, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day any repurchase, repayment, redemption, defeasance or retirement of the Fiscal Quarter most recently endedSenior Notes shall not constitute a Restricted Junior Payment hereunder.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (RadNet, Inc.), Credit and Guaranty Agreement (RadNet, Inc.)
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED that , except (a) so long as no Default or Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, the Borrower may:
(i) repurchase shares may make regularly scheduled payments of its capital stock or of any corporate parent (together with options or warrants interest in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and Senior Unsecured Indebtedness in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements the indenture or shareholder agreements;
other agreement pursuant to which any such Indebtedness was issued, (b) Borrower may make cash payments in connection with conversions of any convertible Indebtedness issued as permitted by Section 6.1(n) so long as (i) no Default or Event of Default shall have occurred and be continuing or shall be caused thereby and (ii) repurchaseBorrower shall have delivered to the Administrative Agent a compliance certificate signed by an Authorized Officer demonstrating compliance with the financial covenants hereunder and a Minimum Liquidity of not less than $100,000,000, redeemin each case, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto to the Available Amount Usage subject Restricted Junior Payment and reaffirming that the representations and warranties made hereunder are true and complete in all material respects as of such date, (c) so long as no Default or Event of Default shall not exceed have occurred and be continuing or shall be caused thereby, Borrower may make regularly scheduled payments of interest in respect of any Subordinated Indebtedness permitted hereby in accordance with the Available Amount;
terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, (iiid) purchaseso long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may repurchase, redeem or otherwise acquire shares of common stock or retire for value any Equity Interests of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem Subsidiaries held by any current or exchangeformer officer, in whole director, consultant or in part, any capital stock of Borrower for shares of another class of capital stock employee of Borrower or rights to acquire shares any of its Subsidiaries, or his or her estate, spouse, former spouse, or family member (or pay principal or interest on any Indebtedness issued in connection with such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a wholerepurchase, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchangeother acquisition) that are at least as advantageous pursuant to Lenders as those contained in the capital any equity subscription agreement, stock redeemed option agreement, shareholders’ agreement or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration similar agreement or benefit plan of any dividend kind, (e) Borrower and its Subsidiaries may repurchase Equity Interests which repurchase is deemed to occur upon any “cashless” exercise of stock options, warrants or other convertible securities, (f) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower and its Subsidiaries may perform their obligations to support the price per share of Borrower common stock in respect of Borrower's outstanding capital stock price protection agreements entered into with sellers under Prior Acquisitions and Permitted Acquisitions, (g) Borrower may make payments pursuant to the terms of this clause Indebtedness incurred in connection with the settlement of Adverse Proceedings listed on Schedule 4.11, (vh) Equity Interests surrendered to Borrower or its Subsidiaries in connection with any indemnification or withholding obligation, and (i) the making Borrower may make cash payments in the form of any other Restricted Junior Payment pursuant cash settlements with respect to the Spread Overlay Agreements in accordance with the terms thereof, and only to the extent required thereby, so long as the Borrower receives contemporaneously with or within ninety days preceding such distribution aggregate cash payments in connection with such Spread Overlay Agreements of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be not less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endeddistribution.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Hologic Inc), Credit and Guaranty Agreement (Hologic Inc)
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that Company may:
(i) make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as such indenture or other agreement may be amended from time to time to the extent permitted under subsection 7.12;
(ii) so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused therebyresult therefrom, Borrower may:
(i) repurchase shares of its capital Company may purchase Company’s common stock or of any corporate parent (together with options common stock equity awards from present or warrants in respect of any thereof) held by present and former officers, directors and officers or employees of Borrower so long as Company or any Subsidiary of Company upon the death, disability or termination of employment of such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements officer or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amountemployee;
(iii) purchasemake Restricted Junior Payments with respect to (x) employee or director stock options, redeem stock incentive plans or otherwise acquire shares restricted stock plans of common stock Company which are compensatory in nature and approved by the compensation committee of Borrower or warrants or options Company’s board of directors and (y) the purchase from time to acquire any such shares with proceeds received time by Borrower from substantially concurrent equity contributions or issuances of new shares Company of its common stockstock (for not more than market price) with the proceeds of the exercise by grantees under any equity-based incentive plan;
(iv) redeem so long as no Potential Event of Default or exchange, in whole or in part, any capital stock Event of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares Default has occurred and is continuing at the time of such other class payment or immediately after giving effect thereto, make payments of capital stockprincipal (and accrued and unpaid interest thereon) with respect to Subordinated Indebtedness; PROVIDED provided that (x) the Company shall have provided to Administrative Agent a pro-forma Compliance Certificate certified by the chief financial officer of Company and demonstrating that after giving effect to such other class payments of capital stock contains terms principal (and provisions accrued and unpaid interest thereof) and any incurrence of Indebtedness in connection therewith, the Consolidated Leverage Ratio is less than 2.00 to 1.00 and (taken as a wholey) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such Restricted Junior Payment, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged thereforis not less than $50,000,000; and
(v) make so long as no Potential Event of Default or Event of Default has occurred and is continuing at the time of such payment or immediately after giving effect thereto, other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend Payments by Company in respect of Borrower's outstanding capital stock pursuant to the terms of this clause its Capital Stock; provided that (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (Xx) the Consolidated Leverage Ratio as Company shall have provided to Administrative Agent a pro-forma Compliance Certificate certified by the chief financial officer of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 Company and (Y) the aggregate amount of demonstrating that after giving effect to any such Restricted Junior Payment, when added the Consolidated Leverage Ratio is less than 2.50 to 1.00, (y) the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of Revolving Loan Commitments after giving effect to such Restricted Junior Payment, is not less than $40,000,000 and (z) the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower in respect of its Capital Stock made pursuant to this clause (v) during the period commencing on since the Closing Date and ending on the Declaration Date, does shall not exceed $50,000,000 plus, to the extent Company and its Subsidiaries have generated Consolidated Excess Cash Flow in any single Fiscal Quarter, an amount not to exceed 25% of such Consolidated Excess Cash Flow (or 50% of cumulative such Consolidated Net Income of Borrower and its Subsidiaries for Excess Cash Flow to the period commencing on extent the Closing Date and ending on Consolidated Leverage Ratio is less than 2.00:1.00 at the last day end of the preceding Fiscal Quarter most recently endedYear), but solely to the extent that such amount is not applied to increase the limit under subsection 7.8.
Appears in 2 contracts
Samples: Credit Agreement (Hexcel Corp /De/), Credit Agreement (Hexcel Corp /De/)
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that so long as no Potential Event of Default or Potential Event of Default has shall have occurred and is be continuing or would be caused therebyoccur as a result thereof (except in the case of Restricted Junior Payments permitted by subsections 7.5(i), Borrower may:(iii), (v) and (vi) below):
(i) repurchase shares Company may (a) make payments of its capital stock or of any corporate parent (together with options or warrants regularly scheduled interest in respect of any thereof) held by present the Senior Subordinated Bridge Notes and former officersthe Senior Subordinated Notes, directors and employees of Borrower so long as such repurchase is pursuant to, and in each case in accordance with the terms ofof and to the extent required by (and subject to the subordination provisions contained therein) the Senior Subordinated Bridge Note Agreement or the Senior Subordinated Indenture, management and/or employee stock plans, stock subscription agreements (b) refinance the Senior Subordinated Bridge Notes with the proceeds of the Senior Subordinated Notes and (c) to make payments to the holders of the Senior Subordinated Bridge Notes or shareholder agreementsof the Senior Subordinated Notes in the form of equity Securities that the subordination provisions applicable thereto permit such holders to accept prior to the repayment in full of the Obligations;
(ii) so long as (A) after giving effect to the making of such Restricted Junior Payment, Company shall be in PRO FORMA compliance with the covenant set forth in Section 7.6B for the most recent full Fiscal Quarter immediately preceding the date of the making of such Restricted Payment for which the relevant financial statements have been delivered pursuant to subsections 6.1(i) or (ii) and (B) an Authorized Officer of Company shall have delivered a certificate to Administrative Agent in form and substance reasonably satisfactory to Administrative Agent (including a calculation of Company's PRO FORMA compliance with the covenant set forth in Section 7.6B in reasonable detail) certifying as to the accuracy of clause (ii)(A) above, Company may make dividend payments to Parent the proceeds of which will be used by Parent to repurchase, redeem, defease redeem or otherwise prepay acquire or retire Senior Subordinated Debt for value any equity Securities of Parent, or Refinancing Sub Debtany warrant, option or other right to acquire any such equity Securities, in each case held by any member of management or an employee of Parent, Company or any of its Subsidiaries pursuant to any employment agreement, management equity subscription agreement, restricted stock plan, stock option agreement or other similar arrangements so long as the total amount of such repurchases, redemptions, acquisitions, retirements and payments shall not exceed (I) $3,000,000 in any calendar year (with unused amounts in any calendar year being carried forward to succeeding calendar years subject to a maximum (without giving effect to the following clause (II)) of $8,000,000 in any calendar year) PLUS (II) the aggregate cash proceeds received by Company during such calendar year from any reissuance of equity Securities of Parent and warrants, options and other rights to acquire equity Securities of Parent, by Parent or Company to members of management and employees of Company and its Subsidiaries (to the extent such proceeds are not otherwise required to be applied pursuant to subsection 2.4B(iii) and have not been used to make Investments pursuant to subsection 7.3(xii) or Consolidated Capital Expenditures pursuant to subsection 7.8(ii));
(iii) Company may make dividend payments to Parent to the extent necessary to permit Parent to (x) pay corporate and other general administrative expenses (including fees in respect to advisors services) in an aggregate amount which does not exceed $1,000,000 in any Fiscal Year and (y) to make payments in respect of taxes imposed on Company and its Subsidiaries;
(iv) on and after the fifth anniversary of the Closing Date, Company may make dividend payments to Parent to enable Parent to pay cash interest or dividends on the Parent P-I-K Securities in accordance with the terms of such Parent P-I-K Securities; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amountto such payment, Company would be in compliance with subsection 7.6;
(iiiv) purchase, redeem or otherwise acquire shares the Company shall be permitted to make payments in respect of common stock statutory appraisal rights (and any settlement thereof) exercised by holders of Borrower or warrants or options to acquire any such shares outstanding DAH Common Stock in connection with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged thereforMerger; and
(vvi) Company may make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant necessary in order to consummate the terms of this clause (v)Tender Offer in accordance with the Tender Offer Materials, (X) the Consolidated Leverage Ratio as of Merger in accordance with the last day of Merger Agreement and the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedSecond Merger.
Appears in 2 contracts
Samples: Credit Agreement (Audio International Inc), Increased Commitments Agreement (Decrane Holdings Co)
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED Payment except that:
(a) Borrower may make Restricted Junior Payments to Holdings (i) in an aggregate amount not to exceed $2,500,000 in any Fiscal Year, to the extent necessary to permit Holdings or its parent entity to pay general administrative costs and expenses and out-of-pocket legal, accounting and filing and other general corporate overhead costs of Holdings (including, franchise taxes and other fees required to maintain its existence) or its parent entity actually incurred by Holdings or its parent entity, and (ii) for so long as the Borrower is a member of a group filing a consolidated income or combined income tax return with Holdings, to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries franchise taxes and other fees required to maintain its existence, so long as (A) Holdings applies the amount of any such Restricted Junior Payment for such purpose, and (B) the amount of such payments in respect of any tax year does not, in the aggregate, exceed the amount that Borrower and its Subsidiaries that are members of such consolidated group would have been required to pay in respect of such Taxes in respect of such year if Borrower and its Subsidiaries paid such Taxes directly as a stand-alone consolidated income Tax group (reduced by any such Taxes paid directly by Borrower and its Subsidiaries);
(b) so long as no Event of Default shall have occurred and be continuing or Potential shall be caused thereby, Borrower may repurchase, redeem or otherwise acquire or retire for value any Equity Interests of Borrower or any of its Subsidiaries held by any current or former officer, director, consultant or employee of Borrower or any of its Subsidiaries, or his or her estate, spouse, former spouse, or family member (or pay principal or interest on any Indebtedness issued in connection with such repurchase, redemption or other acquisition) and may make Restricted Junior Payments to Holdings utilized for the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Holdings held by any current or former officer, director, employee or consultant of Borrower or any of its Subsidiaries, or his or her estate, spouse, former spouse, or family member (or for the payment of principal or interest on any Indebtedness issued in connection with such repurchase, redemption or other acquisition) in each case, pursuant to any equity subscription agreement, stock option agreement, shareholders' agreement or similar agreement or benefit plan of any kind; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $2,500,000 in any calendar year period (with unused amounts in any immediately preceding calendar year being carried over to the succeeding calendar year subject to a maximum carry-over amount of $2,500,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds from the sale of Equity Interests (other than Disqualified Equity Interests) of Holdings to any current or former officer, director, consultant or employee of Borrower or any of its Subsidiaries, or his or her estate, spouse, former spouse, or family member of Borrower, any of its Subsidiaries or any of its direct or indirect parent entities that occurs after the Closing Date, plus
(ii) the cash proceeds of key person life insurance policies, if any, received by Holdings and its Subsidiaries after the Closing Date;
(c) Holdings and its Subsidiaries may redeem or repurchase Equity Interests in exchange for Equity Interests of Holdings (other than Disqualified Equity Interests) or with the proceeds of a substantially contemporaneous sale of Equity Interests of Holdings (other than Disqualified Equity Interests), or a substantially contemporaneous receipt of a capital contribution to Holdings;
(d) Borrower and its Subsidiaries may repay, repurchase, redeem or otherwise acquire for value any subordinated Indebtedness or Permitted Debt Securities with the proceeds of Permitted Refinancing Indebtedness or with the proceeds of a substantially contemporaneous sale of Equity Interests of Holdings (other than Disqualified Equity Interests), or a substantially contemporaneous receipt of a capital contribution to Holdings;
(e) Borrower and its Subsidiaries may purchase, redeem and repay the Existing Indebtedness;
(f) so long as no Event of Default has occurred and is continuing, Holdings and its Subsidiaries may make other Restricted Junior Payments in an aggregate amount not to exceed $25,000,000;
(g) Holdings and its Subsidiaries may make Restricted Junior Payments out of the Available Amount; provided that no Restricted Junior Payments shall be permitted under this clause (g) unless (i) no Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that arise after giving effect thereto and (ii) on a Pro Forma Basis the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares would be in compliance with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio Section 6.7 as of the last day of the Fiscal Quarter most recently ended shall be recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.1(a) or (b) and would have a Senior Secured Leverage Ratio as of such date that is less than 4.00:1.00 or equal to 3.50:1.00; and
(h) Holdings and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all its Subsidiaries may make Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedany Suspension Period.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Aeroflex Holding Corp.), Credit and Guaranty Agreement (Aeroflex Holding Corp.)
Restricted Junior Payments. Borrower shall not, will not and shall will not permit any of its Subsidiaries to, directly or indirectly, indirectly to declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower mayPayment except:
(iA) repurchase shares Borrower may make payments and distributions to Holdings to permit Holdings to pay federal and state income taxes then due and owing, franchise taxes and other similar licensing expenses incurred in the ordinary course of its capital stock or business; provided, however, Borrower's contribution to taxes as a result of any corporate parent the filing of a consolidated return by Holdings shall not be greater, nor the receipt of tax benefits less, then they would have been had Borrower not filed a consolidated return with Holdings;
(together B) Subsidiaries of Borrower may make Restricted Junior Payments to Borrower;
(C) Borrower may make required payments of principal and interest with options or warrants in respect of any thereof) to the Senior Term Loan, Additional Senior Term Loan and Subordinated Indebtedness held by present and former officersSBA, directors and employees of Borrower so long as such repurchase is pursuant to, and required in accordance with the terms ofthereof but only to the extent permitted in the Intercreditor Agreement; provided, management and/or employee stock planshowever, stock subscription agreements or shareholder agreementsBorrower may make optional prepayments with respect to the Senior Term Loan, Additional Senior Term Loan and Subordinated Indebtedness held by SBA if (1) at the time of such prepayment, required payments of principal and interest are permitted to be paid pursuant to the Intercreditor Agreement and (2) after giving effect to such prepayment, the Maximum Revolving Loan Balance exceeds the sum of outstanding principal balance of the Revolving Loans plus outstanding Lender Guarantees, by not less than $5,000,000; provided, further, however, Borrower may refinance the Subordinated Indebtedness held by SBA with Refinanced Subordinated Indebtedness in accordance with subsection 3.1(G);
(iiD) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that Borrower may make required payments of principal and interest with respect to the Indebtedness evidenced by the Seller Notes provided at the time of such payment and after giving effect thereto the Available Amount Usage shall not exceed the Available Amountthereto, no Event of Default under subsection 6.1(A) or 6.1(C) (as it relates to a failure to perform or comply with subsections 4.3, 4.4 or 4.5 hereof) exists or would arise as a result thereof;
(iiiE) purchase, redeem or otherwise acquire shares Borrower may make dividend payments to Holdings solely to permit Holdings to make dividend payments on account of common preferred stock of Borrower Holdings held by SBA provided at the time of such payment and after giving effect thereto, no Default or warrants Event of Default under subsection 6.1(A) or options 6.1(C) (as it relates to acquire any such shares a failure to perform or comply with proceeds received by Borrower from substantially concurrent equity contributions subsections 4.3, 4.4 or issuances of new shares of its common stock4.5 hereof) exists or would arise as a result thereof;
(ivF) redeem or exchangeBorrower may make payments and distributions to Holdings, not to exceed $100,000 in whole or the aggregate in partany fiscal year, any capital stock to permit Holdings to pay board of director fees and expenses and other out-of-pocket expenses;
(G) Borrower for shares of another class of capital stock of Borrower or rights and its Subsidiaries may make required payments with respect to acquire shares the Additional Seller Notes provided at the time of such other class payment and after giving effect thereto, no Default or Event of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken Default exists or would arise as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged thereforresult thereof; and
(vH) Borrower may make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") required payments of declaration of any dividend in interest with respect of Borrower's outstanding capital stock pursuant to the Refinanced Subordinated Indebtedness as required in accordance with the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant thereof but only to the terms of this clause (v), (X) extent permitted in the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedsubordination agreement entered into with respect thereto.
Appears in 2 contracts
Samples: Credit Agreement (Aki Holding Corp), Credit Agreement (Aki Holding Corp)
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that Company may (i) make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as such indenture or other agreement may be amended from time to time to the extent permitted under subsection 7.11A, (ii) (a) so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
excluding the repurchases of Equity Interests described in clause (ib) of this subsection 7.5, pay dividends on, repurchase shares of or redeem its capital stock or of any corporate parent (together with options or warrants Equity Interests in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall an amount not to exceed the Available Amount;
(iii) purchase, redeem or amount of Consolidated Excess Cash Flow for the immediately preceding Fiscal Year not otherwise acquire shares of common stock of Borrower or warrants or options required to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken be applied as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock mandatory prepayment pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (vsubsection 2.4B(iii)(d), (X) ; provided that the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be immediately preceding such payment, repurchase or redemption is less than 4.00:1.00 3.25:1.00 and (Yb) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or would result therefrom, repurchase its Equity Interests owned by directors, officers and employees of Company or its Subsidiaries or make payments to directors, officers and employees of Company or its Subsidiaries upon termination of employment in connection with the aggregate amount exercise of any such Restricted Junior Paymentstock options, when added to the aggregate amount of all Restricted Junior Payments previously declared stock appreciation rights or (without duplication) paid by Borrower similar equity incentives or equity based incentives pursuant to this clause management or other incentive plans or in connection with the death or disability of such directors, officers and employees in an aggregate amount, together with principal payments on Indebtedness permitted pursuant subsection 7.1(ix), not to exceed $1,000,000 in any Fiscal Year and (viii) during repay Subordinated Indebtedness (including the period commencing on Senior Subordinated Notes) with the Closing Date and ending on proceeds of other Subordinated Indebtedness permitted to be incurred pursuant to subsection 7.1(vi) or with the Declaration Date, does not exceed 50% proceeds of cumulative Consolidated Net Income Equity Interests of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedCompany.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Skilled Healthcare Group, Inc.), Amendment and Restatement Agreement (Skilled Healthcare Group, Inc.)
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that (i) Company may make scheduled payments of principal in respect of any Existing Senior Subordinated Notes not tendered pursuant to the Tender Offer and which has not been defeased in accordance with subsection 7.5(ii) and the Existing Senior Subordinated Note Indenture, in each case in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the Existing Senior Subordinated Note Indenture, and (ii) so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower Company may:
(i1) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower Company so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements, and (2) repurchase shares of its capital stock (together with options or warrants in respect of any thereof) held by officers, directors and employees of Company and relatives of such Persons during Fiscal Year 2000 so long as the aggregate amount paid by Company for such shares does not exceed $3,500,000;
(iib) repurchase, redeem, defease or otherwise prepay or retire any Existing Subordinated Notes not tendered pursuant to the Tender Offer on terms (set forth in the Existing Senior Subordinated Debt Note Indenture or otherwise) no less favorable in any material respect to Company and Lenders than the terms of the Tender Offer;
(c) repurchase, redeem, defease or otherwise ' prepay or retire the Bridge Notes, the Conversion Notes and the Refinancing Sub Debt; PROVIDED that that, in each case, after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iiid) purchase, redeem or otherwise acquire shares of common stock of Borrower Company or warrants or options to acquire any such shares with proceeds received by Borrower Company from substantially concurrent equity contributions or issuances of new shares of its common stock;
(ive) redeem or exchange, in whole or in part, any capital stock of Borrower Company for shares of another class of capital stock of Borrower Company or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock 105 contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and;
(vf) redeem or cancel Existing Preferred Stock in the Merger pursuant to the terms of the Merger Agreement;
(g) redeem, repurchase or otherwise prepay the Bridge Notes or Conversion Notes with the proceeds of the Refinancing Sub Debt;
(h) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of BorrowerCompany's outstanding capital stock pursuant to the terms of this clause (vh) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (vh), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower Company pursuant to this clause (vh) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower Company and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.
Appears in 2 contracts
Samples: Credit Agreement (Alliance Imaging Inc /De/), Credit Agreement (Alliance Imaging Inc /De/)
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly Directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, or permit any of its Material Subsidiaries through any manner or means or through any other Person to directly or indirectly declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower mayPayment except:
(ia) repurchase Restricted Junior Payments made when the Consolidated Leverage Ratio, both before and after giving effect to such Restricted Junior Payment and any Debt incurred in connection therewith, is less than 2.0 to 1.0;
(b) Holdings may make Restricted Junior Payments to, purchase or redeem Equity Interests of Holdings (including related stock appreciation rights or similar securities) (A) held by then present or former directors, consultants, officers or employees of Holdings or any of its Subsidiaries or by any employee compensation and incentive arrangements upon such person’s death, disability, retirement or termination of employment or under the terms of any such employee compensation and incentive arrangements or any other agreement under which such shares of its capital stock or of any corporate parent related rights were issued or (together with options or warrants in respect of any thereofB) held by present and or former officers, directors and or employees of Borrower so long as Holdings or any of its Subsidiaries at any time in order to provide liquidity to such repurchase is pursuant toofficers in the ordinary course of business; provided that the aggregate amount of such purchases or redemptions under this clause (b) shall not exceed $100,000,000 per fiscal year (plus, the amount of net proceeds received by Holdings or its Subsidiaries during such fiscal year from (x) sales of Equity Interests of Holdings to directors, officers or employees of Holdings or any of its Subsidiaries in connection with employee compensation and incentive arrangements and (y) third-party insurers under key-man life insurance policies that were not already applied under this clause (b)) which, if not used in accordance with the terms ofany year, management and/or employee stock plans, stock subscription agreements or shareholder agreementsmay be carried forward to any subsequent fiscal year;
(iic) repurchaserepurchases of common stock of Holdings in open market transactions, redeempursuant to the existing stock repurchase program approved by the governing body of Holdings and in effect on April 15, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall 2011 in an aggregate amount not to exceed the Available Amount$416,000,000;
(iiid) noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of, and any required tax withholdings in respect of, such options;
(e) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares Equity Interests issued by it with the proceeds received by Borrower from the substantially concurrent equity contributions or issuances issue of new shares of its common stock;
(iv) redeem stock or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged thereforcommon Equity Interests; and
(vf) make other Restricted Junior PaymentsPayments made, in an aggregate amount not to exceed $100,000,000; PROVIDED provided, that, notwithstanding anything to the contrary foregoing, Holdings may pay dividends that on were permitted under any provision of Section 7.07(a) through (f) above at the date (the "DECLARATION DATE") time of declaration thereof if, at the time of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v)such declaration, (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended no Default shall have occurred and then be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedcontinuing.
Appears in 2 contracts
Samples: Credit Agreement (Western Digital Corp), Credit Agreement (Western Digital Corp)
Restricted Junior Payments. Borrower Holdings and Company shall not, and shall not permit any of its their Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that (i) Holdings and its Subsidiaries may make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as such indenture or other agreement may be amended from time to time, (ii) so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would be caused therebyresult therefrom, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant toHoldings may make, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options Company may make Restricted Junior Payments to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in partHoldings sufficient to fund, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) repurchase of Capital Stock that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock is required pursuant to the terms of this clause any “qualified stock bonus plan” under Section 401(a) of the Internal Revenue Code that complies in all material respects with the applicable provisions of Section 404, 409 and 415 of the Internal Revenue Code shall be permitted; provided that such repurchases shall not exceed $2,000,000 in any Fiscal Year, (iii) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or would result therefrom, Holdings and its Subsidiaries make any payment or prepayment of principal of, premium, if any, or interest on, or redeem, purchase, retire, defease (including in-substance or legal defeasance), create a sinking fund or make a similar payment with respect to, Subordinated Indebtedness of Company with the proceeds of any refinancing Indebtedness of Company permitted by subsection 7.1 so long as such refinancing Indebtedness is Subordinated Indebtedness of Company and subordinated to at least the same extent as debt refinanced, (iv) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing, Holdings and Company may make other Restricted Junior Payments after the Closing Date equal to (x) $12,500,000 plus (y) the Specified Equity Amount and (v) so long as no Event of Default or the making Potential Event of any other Default shall have occurred and be continuing or be caused thereby, Holdings and Company may make additional Restricted Junior Payment Payments to any Person (including, without limitation, any Vector Entity or any of its Affiliates) after the Closing Date in an aggregate amount, when taken together with payments made pursuant to the terms of this clause (vsubsection 7.8(viii), (X) not to exceed $12,000,000 plus interest accruing thereon from and after the Consolidated Leverage Ratio as of Closing Date at the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any applicable federal rate; provided, that all such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower made pursuant to this clause (vsubsection 7.4(v) during the period commencing shall have been funded with amounts deposited in a segregated account on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (SafeNet Holding Corp), Second Lien Credit Agreement (SafeNet Holding Corp)
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that Company may:
(i) make regularly scheduled payments of interest in respect of any Permitted Additional Indebtedness in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions, if any, contained in, the indenture or other agreement pursuant to which such Permitted Additional Indebtedness was issued, as such indenture or other agreement may be amended from time to time to the extent permitted under subsection 7.12;
(ii) so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused therebyresult therefrom, Borrower may:
(i) repurchase shares of its capital Company may purchase Company’s common stock or of any corporate parent (together with options common stock equity awards from present or warrants in respect of any thereof) held by present and former officers, directors and or employees (or their respective spouses, successors, executors, estates, administrators or heirs) of Borrower so long as Company or any Subsidiary of Company upon the death, disability, retirement or termination of employment of such repurchase is pursuant toofficer, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements director or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amountemployee;
(iii) purchasemake Restricted Junior Payments with respect to (x) employee or director stock options, redeem stock incentive plans or otherwise acquire shares restricted stock plans of common stock Company which are compensatory in nature and approved by the compensation committee of Borrower or warrants or options Company’s board of directors and (y) the purchase from time to acquire any such shares with proceeds received time by Borrower from substantially concurrent equity contributions or issuances of new shares Company of its common stockstock (for not more than market price) with the proceeds of the exercise by grantees under any equity-based incentive plan;
(iv) redeem make Restricted Junior Payments with respect to Company’s Capital Stock in exchange for, or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts out of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; andnet cash proceeds of, a substantially concurrent sale of, Company’s Capital Stock;
(v) make any Restricted Junior Payment deemed to occur upon the exercise of any options or warrants to the extent that such Restricted Junior Payment represents all or a portion of the exercise price;
(vi) so long as no Potential Event of Default or Event of Default has occurred and is continuing at the time of such payment or immediately after giving effect thereto, other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend Payments by Company in respect of Borrower's outstanding capital stock pursuant its Capital Stock; provided that after giving effect to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added (1) the Company and its Subsidiaries shall be in Pro Forma Compliance and (2) the Consolidated Leverage Ratio is less than 3.25 to 1.00 on a Pro Forma Basis;
(vii) make (x) repurchases, redemptions or defeasances of, payments of principal (and accrued and unpaid interest of) and other payments on or with respect to Indebtedness permitted under subsection 7.1(ix), (y) payments on Indebtedness permitted under subsection 7.1(ix) with proceeds of Indebtedness to the aggregate amount extent permitted hereunder and incurred to refinance such Indebtedness and (z) payments on Indebtedness permitted under subsection 7.1(ix) in exchange for, or with proceeds of all a substantially concurrent sale of, Capital Stock; provided that after giving effect to any such repurchase, redemption, defeasance or payment, no Potential Event of Default or Event of Default shall have occurred and be continuing, and after giving effect to any such repurchase, redemption, defeasance or payment pursuant to clause (x), (1) the Company and its Subsidiaries shall be in Pro Forma Compliance and (2) the Consolidated Leverage Ratio shall be less than 3.25 to 1.00 on a Pro Forma Basis;
(viii) make payments of dividends and distributions within 90 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the provisions of this Agreement; provided that at the date of declaration of such payment, (x) no Potential Event of Default or Event of Default shall have occurred and be continuing, (y) the Company and its Subsidiaries shall be in Pro Forma Compliance and (z) the Consolidated Leverage Ratio shall be less than 3.25 to 1.00 on a Pro Forma Basis; and
(ix) make Restricted Junior Payments previously declared or (without duplication) paid by Borrower to minority shareholders of any Person that is acquired pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% a Permitted Acquisition or similar Investment permitted by subsection 7.3 pursuant to appraisal or dissenters’ rights or applicable law with respect to shares of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedsuch Person held by such shareholders.
Appears in 2 contracts
Samples: Credit Agreement (Hexcel Corp /De/), Credit Agreement (Hexcel Corp /De/)
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that (i) on or after August 1, 1999, Company may repurchase certain Subordinated Notes so long as (a) such Subordinated Notes are repurchased only with proceeds of the Melbourne Asset Sale constituting all or a portion of the Initial Retained Amount, (b) Company shall have made the regularly scheduled interest payment due on August 1, 1999 in respect of the Subordinated Notes (subject to clause (ii) hereof), and (c) no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby; (ii) Company may make regularly scheduled payments of interest in respect of the Subordinated Indebtedness in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as such indenture or other agreement may be amended from time to time to the extent permitted under subsection 7.15B; and (iii) so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
(i) Company may make Restricted Junior Payments to repurchase shares of its capital stock Company Common Stock (or of any corporate parent (together with options or warrants in respect of any thereofto acquire Company Common Stock) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and from Management Investors in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the Stockholders Agreement."DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.
Appears in 2 contracts
Samples: Credit Agreement (Dictaphone Corp /De), Credit Agreement (Dictaphone Corp /De)
Restricted Junior Payments. Each Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that (i) Company may redeem the Existing Senior Notes as contemplated by subsection 4.1F(iv), (ii) Company may make scheduled payments of principal in respect of any Existing Subordinated Notes not tendered pursuant to the Debt Tender Offer in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the Existing Subordinated Note Indenture, and (iii) so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower Company may:
(ia) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower Company so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(iib) repurchase, redeem, defease or otherwise prepay or retire Senior any Existing Subordinated Notes not tendered pursuant to the Debt Tender Offer on terms (set forth in the Existing Subordinated Note Indenture or Refinancing otherwise) no less favorable in any material respect to Company and Lenders than the terms of the Debt Tender Offer;
(c) repurchase, redeem, defease or otherwise prepay or retire New Sub Debt; PROVIDED provided that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iiid) purchase, redeem or otherwise acquire shares of common stock of Borrower Company or warrants or options to acquire any such shares with proceeds received by Borrower Company from substantially concurrent equity contributions or issuances of new shares of its common stock;
(ive) redeem or exchange, in whole or in part, any capital stock of Borrower Company for shares of another class of capital stock of Borrower Company or rights to acquire shares of such other class of capital stock; PROVIDED provided that such other class of 115 capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(vf) make other Restricted Junior Payments; PROVIDED provided that on the date (the "DECLARATION DATEDeclaration Date") of declaration of any dividend in respect of BorrowerCompany's outstanding capital stock pursuant to the terms of this clause (vf) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (vf), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower Company pursuant to this clause (vf) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower Company and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.
Appears in 2 contracts
Samples: Credit Agreement (NXS I LLC), Credit Agreement (Amphenol Corp /De/)
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior PaymentPayment except that (a) any Subsidiary of Holdings may declare and pay dividends or make other distributions ratably to its equity holders (provided that, other than in respect of Restricted Junior Payments made with amounts received directly or indirectly from South African Subsidiaries, no Credit Party or any of its Subsidiaries may declare and pay dividends pursuant to this Section 6.4(a) to any Person that is not a Credit Party), (b) any Subsidiary of Holdings may make Restricted Junior Payments to Holdings or to Tronox LLC to the extent necessary to permit Holdings or Tronox LLC (i) to pay general administrative costs and expenses, legal and accounting fees and other general corporate and overhead expenses incurred by Holdings or Tronox LLC in the ordinary course of business, (ii) pay franchise taxes and other Tax obligations or fees required in each case to maintain its corporate existence, (iii) pay Taxes which are due and payable by Holdings as part of a consolidated group or due to ownership of any interests in Subsidiaries that are not treated as corporations for applicable Tax purposes, in each case, to the extent such Taxes are attributable to Holdings and Subsidiaries of Holdings, (iv) pay auditing fees and expenses, (v) pay directors fees, expenses and indemnities owing to directors of Holdings and (vi) pay fees and expenses incurred in connection with an initial public offering; PROVIDED provided, however that other than due to applicable law or regulation prohibiting the payment by one or more Subsidiaries of their proportionate share of Holdings’ liabilities noted in this Section 6.4(b) (or if any such payment would render one or more Subsidiaries insolvent or reasonably likely to become insolvent), each Subsidiary of Holdings may not pay more than its proportionate share of Holdings’ liabilities noted in this Section 6.4(b)), (c) Holdings or any Subsidiary may make regularly scheduled payments of interest in respect of the Permitted Seller Notes, the Permitted Unsecured Indebtedness, unsecured Permitted Refinancing Indebtedness and Indebtedness permitted under Section 6.1(s) in accordance with the terms of, and only to the extent required by, the agreement governing such Indebtedness, (d) Holdings or any Subsidiary may make payments of principal and interest in respect of the extensions of credit made under the Revolving Credit Agreement and any Alternative Facility in accordance with the terms thereof, (e) so long as both before and immediately after giving effect to such Restricted Junior Payment, the Leverage Ratio for the most recently ended Fiscal Quarter or Fiscal Year for which financial statements are then available does not exceed 3.00:1.00 and no Event of Default or Potential Event of Default has occurred and is continuing or would be caused therebyresult therefrom, Borrower may:
(i) repurchase shares Holdings may make Restricted Junior Payments in an amount not in excess of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
, (iiif) purchase, redeem or otherwise acquire shares Holdings may pay dividends to the holders of common stock of Borrower or warrants or options Holdings in any Fiscal Quarter in an amount not to acquire exceed $0.25 per share for each such Fiscal Quarter (as such amount shall be appropriately adjusted for any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares stock splits, stock dividends, reverse stock splits, stock consolidations and similar transactions), (g) in any Fiscal Year, Holdings may pay dividends to holders of its common stock;
(iv) redeem or exchange, stock in whole or in part, an amount not to exceed 6.0% of the net cash proceeds from any capital public offering of the common stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of Holdings during such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v)Fiscal Year, (Xh) no earlier than 12 months following the Consolidated Leverage Ratio Second Amendment Effective Date and so long as (i) no Event of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 Default has occurred and is continuing or would result therefrom and (Yii) the aggregate amount of any both before and immediately after giving effect to such Restricted Junior Payment, when added the Leverage Ratio for the most recently ended Fiscal Quarter or Fiscal Year for which financial statements are then available does not exceed 3.00:1.00, share repurchases and/or dividends to the shareholders of Holdings in an aggregate amount during the term of all this Agreement not to exceed $500,000,000, and (i) so long as no Event of Default has occurred and is continuing or would result therefrom, Holdings may make additional Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) in an amount not in excess of $150,000,000 during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% term of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedthis Agreement.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Tronox LTD), Credit and Guaranty Agreement (Tronox LTD)
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that provided that, Company may, make Restricted Junior Payments to Holdings (i) in an aggregate amount not to exceed $500,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses, (ii) to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in each case so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
(ia) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with Holdings applies the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior PaymentPayment for such purpose and (b) the amount of such Restricted Junior Payment does not exceed the amount of the consolidated tax liabilities of Holdings that are attributable to the Company and the Company’s Subsidiaries, when added and (iii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, in order for Holdings to repurchase or redeem outstanding shares of Capital Stock (or options to purchase Capital Stock) of Holdings owned by current or former employees, officers, or directors of Holdings or any of its Subsidiaries pursuant to any management equity subscription agreement, stock option agreement or similar equity agreement, shareholders agreement or benefit plan, provided that the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause subclause (viii) during the period commencing on the Closing Date and ending on the Declaration Date, does in any Fiscal Year shall not exceed 50% $50,000 plus the amount of cumulative Consolidated Net Income any net cash proceeds received by Holdings in such Fiscal Year from the sale of Borrower Capital Stock of Holdings to any and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the all such employees, officers or directors that do not constitute an Excluded Issuance(it being understood, however, that unused amounts permitted to be paid pursuant to this proviso are Holdings available to be carried over to subsequent Fiscal Quarter most recently endedYears).
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (SolarWinds, Inc.), Credit and Guaranty Agreement (SolarWinds, Inc.)
Restricted Junior Payments. Borrower The Lessee shall not, and shall not permit any of its Subsidiaries toSubsidiaries, directly or indirectly, to declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided, that the Lessee may make scheduled payments of principal, mandatory prepayments of principal (including through the exercise of remedies) and payment of interest from time to time on Designated Indebtedness; and provided further, that, so long as no Event of Default or Potential Lease Event of Default has occurred and is continuing continuing, or would be caused thereby, Borrower mayresult therefrom:
(i1) repurchase shares the Lessee may prepay Designated Indebtedness from the proceeds of its capital stock Permitted Extension Indebtedness or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreementsOther Permitted Indebtedness;
(ii2) repurchasethe Lessee may make Restricted Junior Payments with respect to its Common Stock in an amount not to exceed, redeemin any fiscal year, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amountlesser of 20% of Consolidated Net Income for such fiscal year and $15 million;
(iii3) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options the Lessee may apply Equity Proceeds to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stockprepay Designated Indebtedness;
(iv4) redeem the Lessee may repurchase its Common Stock in an amount not to exceed in any fiscal year $15 million for purposes of establishing or exchangecontributing to an employee benefit plan; provided, in whole or in part, that any capital stock of Borrower for shares of another class of capital stock of Borrower or rights such repurchased Common Stock resold to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts employees of the shares Lessee shall, to the extent of each class the price paid for such Common Stock by such employee, be excluded from the calculation of capital stock involved in such redemption or exchangethe $15 million limit set forth above;
(5) that are at least as advantageous the Lessee shall be permitted to Lenders as those contained in consummate the capital stock redeemed or exchanged thereforTransaction; and
(v6) make other Restricted Junior Payments; PROVIDED the Lessee may repurchase or redeem all or any portion of the Senior Notes for aggregate cash consideration, when aggregated with any "change of control" put payments arising as a result of the Holding Company Reorganization, not to exceed $75,000,000, provided that on the date (the "DECLARATION DATE"A) of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant after giving effect to the terms of this clause proposed repurchase or redemption, the Lessee shall have not less than $150,000,000 in Cash or Cash Equivalents on its balance sheet and (vB) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the its Consolidated Leverage Ratio (calculated on a pro forma basis as of if the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared proposed repurchase or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending redemption had been consummated on the last day of the Fiscal Quarter most recently endedrecent four fiscal quarter period) shall not exceed the lower of 4.25:1.00 or the ratio required to be met in accordance with Section 7(f)(ii) for the immediately succeeding fiscal quarter end.
Appears in 2 contracts
Samples: Lease Agreement (Atlas Air Inc), Lease Agreement (Atlas Air Inc)
Restricted Junior Payments. Borrower Holdings and Company shall not, and shall not permit any of its their Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that (i) Holdings and its Subsidiaries may make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as such indenture or other agreement may be amended from time to time to the extent permitted under subsection 7.10B, (ii) so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would be caused therebyresult therefrom, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant toHoldings may make, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options Company may make Restricted Junior Payments to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in partHoldings sufficient to fund, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) repurchase of Capital Stock that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock is required pursuant to the terms of this clause any “qualified stock bonus plan” under Section 401(a) of the Internal Revenue Code that complies in all material respects with the applicable provisions of Section 404, 409 and 415 of the Internal Revenue Code shall be permitted; provided that such repurchases shall not exceed $2,000,000 in any Fiscal Year, (iii) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or would result therefrom, Holdings and its Subsidiaries make any payment or prepayment of principal of, premium, if any, or interest on, or redeem, purchase, retire, defease (including in-substance or legal defeasance), create a sinking fund or make a similar payment with respect to, Subordinated Indebtedness of Company with the proceeds of any refinancing Indebtedness of Company permitted by subsection 7.1 so long as such refinancing Indebtedness is Subordinated Indebtedness of Company and subordinated to at least the same extent as debt refinanced, (iv) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing, Holdings and Company may make other Restricted Junior Payments after the Closing Date equal to (x) $10,000,000 plus (y) the Specified Equity Amount and (v) so long as no Event of Default or the making Potential Event of any other Default shall have occurred and be continuing or be caused thereby, Holdings and Company may make additional Restricted Junior Payment Payments to any Person (including, without limitation, any Vector Entity or any of its Affiliates) after the Closing Date in an aggregate amount, when taken together with payments made pursuant to the terms of this clause (vsubsection 7.8(viii), (X) not to exceed $12,000,000 plus interest accruing thereon from and after the Consolidated Leverage Ratio as of Closing Date at the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any applicable federal rate; provided, that all such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower made pursuant to this clause (vsubsection 7.4(v) during the period commencing shall have been funded with amounts deposited in a segregated account on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.
Appears in 2 contracts
Samples: First Lien Credit Agreement (SafeNet Holding Corp), First Lien Credit Agreement (SafeNet Holding Corp)
Restricted Junior Payments. Borrower Holdings shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that any Subsidiary may pay dividends or -------- make other distributions to Company; and provided further that, so long as no -------- ------- Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
(i) repurchase shares Company may make dividend payments to Holdings on or immediately prior to April 15, 2003 for the sole purpose of its capital stock or allowing Holdings to make a one-time partial redemption of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and the Holdings Discount Debentures in accordance with the terms ofof and to the extent required by the Holdings Discount Debentures Indenture in effect as of the Closing Date in an aggregate amount not exceeding the amount required thereunder; provided that for -------- such dividend payment to be permitted to be made to Holdings by Company, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that immediately after giving effect thereto to such payment, (I) the Available Amount Usage excess of the Revolving Loan Commitments over the aggregate principal amount of outstanding Revolving Loans shall not exceed be at least $10,000,000 and (II) Company delivers an Officer's Certificate demonstrating that the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and pro forma Consolidated Leverage Ratio after --- ----- taking into account the relative amounts proposed payment under subsection 7.5(i) is equal to or less than 3.0:1.00; (ii) Company may make dividend payments to Holdings for the purpose of allowing Holdings to make the scheduled interest payments on the Holdings Discount Debentures accruing after April 15, 2003 in accordance with the terms of and to the extent required by the Holdings Discount Debentures Indenture if Company delivers an Officer's Certificate demonstrating pro forma --- ----- compliance with subsection 7.6, with the assumption that the dividends permitted pursuant to this subsection 7.5(ii) were made at the beginning of the shares fiscal period for which the calculations are being made and such distributions are included in Consolidated Fixed Charges, for purposes of each class calculation pursuant to subsection 7.6A; (iii) Company may make payments of capital stock involved regularly scheduled interest in such redemption or exchangerespect of the Senior Subordinated Notes in accordance with the terms of and to the extent required by the Senior Subordinated Indenture; (iv) that are at least as advantageous Company may make cash dividends to Lenders as those contained Holdings for the sole purposes of allowing Holdings to pay for its general operating expenses, franchise tax obligations, accounting, legal, corporate reporting and administrative expenses incurred in the capital stock redeemed or exchanged thereforordinary course of its business in an amount not to exceed $250,000 in the aggregate in any Fiscal Year; and
and (v) Company may make other Restricted Junior Payments; PROVIDED that cash dividends to Holdings for the sole purpose of allowing Holdings to pay income taxes of Holdings and its Subsidiaries on a consolidated based as contemplated by the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant Tax Sharing Agreement. Notwithstanding anything to the terms of contrary in this clause subsection 7.5, Company may make dividend payments to Holdings (vA) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date as necessary to consummate the Transactions and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on (B) after the Closing Date and ending on the last day to satisfy payment of the Fiscal Quarter most recently endedworking capital adjustment required by the Recapitalization Agreement in an amount not to exceed $2,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Diamond Brands Operating Corp), Credit Agreement (Diamond Brands Operating Corp)
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused therebyprovided, Borrower mayhowever, that:
(i) repurchase Borrower may make Restricted Junior Payments to redeem shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by from employees of Borrower from substantially concurrent equity contributions and its Subsidiaries upon the death or issuances other termination of new shares employment of its common stocksuch employees, provided that all of the following conditions are satisfied:
(a) no Potential Event of Default or Event of Default shall have occurred and be continuing or would arise as a result of such Restricted Junior Payment;
(ivb) redeem after giving effect to such Restricted Junior Payment (together with all prior or exchangeconcurrent Restricted Junior Payments permitted under this subsection 7.5(i)(b)), Borrower shall be in whole or compliance on a pro forma basis with the covenants set forth in partsubsection 7.6, any capital stock of recomputed for the most recent month for which financial statements have been delivered by Borrower for shares of another class of capital stock of Borrower or rights pursuant to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged thereforsubsection 6.1; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Yc) the aggregate amount of such Restricted Junior Payments permitted in any Fiscal Year of Borrower shall not exceed $1,500,000;
(ii) Borrower may make regularly scheduled payments of interest in respect of the Senior Subordinated Notes, in accordance with the terms of and to the extent required by, and subject to the subordination provisions contained in, the Subordinated Note Indenture; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing or would arise as a result of such Restricted Junior Payment, when added and (b) after giving effect to such Restricted Junior Payment (together with all prior or concurrent Restricted Junior Payments permitted under this subsection 7.5(ii)), Borrower shall be in compliance on a pro forma basis with the covenants set forth in subsection 7.6, recomputed for the most recent month for which financial statements have been delivered by Borrower pursuant to subsection 6.1; and
(iii) Borrower may make Restricted Junior Payments during the one-week period immediately following the Closing Date in connection with the termination of certain employees of BJI, provided that the aggregate amount of all such Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does shall not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended$230,000.
Appears in 2 contracts
Samples: Credit Agreement (Winsloew Furniture Inc), Credit Agreement (Winsloew Furniture Inc)
Restricted Junior Payments. Borrower No Loan Party shall, nor shall not, and shall not it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower mayPayment except that:
(ia) repurchase shares Borrowers may make regularly scheduled payments of its capital stock or of any corporate parent (together with options or warrants interest in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and Senior Subordinated Notes in accordance with the terms of, management and/or employee stock plansand only to the extent required by the Purchase Agreement, stock subscription agreements or shareholder agreementsand subject to the subordination provisions contained in the Subordination Agreement;
(b) Borrowers may make Restricted Junior Payments to Holdings (i) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, in an aggregate amount not to exceed $250,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses and (ii) repurchaseso long as any of the Borrowers and/or any of their Subsidiaries is a partnership or disregarded entity for U.S. federal and state income tax purposes or is otherwise filing a consolidated or combined tax return with Holdings, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto to the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options extent necessary to acquire permit Holdings to discharge any such shares with proceeds received tax liabilities payable by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchangeHoldings, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken each case so long as a whole, and taking into account Holdings applies the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior PaymentPayment for such purpose;
(c) commencing with the Fiscal Year beginning January 1, when added 2007, and so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrowers may make Restricted Junior Payments to Holdings, and Holdings may then make Restricted Junior Payments, in each case for the purpose of repurchasing or redeeming Capital Stock of Holdings from employees upon the death, disability or other termination of employment of any such employee in an amount not to exceed $750,000 in any Fiscal Year;
(d) at any time on or after the fifth anniversary of the Closing Date, Borrowers may make cash payments in respect of the Senior Subordinated Notes corresponding to the amount of accrued original issue discount (as defined in Section 1273 of the Internal Revenue Code) in respect of the Senior Subordinated Notes so long as (i) no Default or Event of Default shall have occurred and be continuing, (ii) at the time of such Restricted Junior Payment and after giving effect thereto, the sum of (A) the amount, if any, by which (1) the Revolving Commitments exceed (2) the sum of the Total Utilization of Revolving Commitments plus (B) the aggregate amount of all Cash and Cash Equivalents of Borrowers and their Subsidiaries at such time, shall not be less than $5,000,000; and (iii) after giving effect to such Restricted Junior Payments previously declared Payment, Borrowers shall demonstrate (A) a pro forma Total Leverage Ratio and pro forma Senior Leverage Ratio of at least 0.25x less than the Total Leverage Ratio or Senior Leverage Ratio, as applicable, required at such time by Section 6.08 and (without duplicationB) paid a pro forma Interest Coverage Ratio and pro forma Fixed Charge Coverage Ratio of at least 0.25x more than the Interest Coverage Ratio or Fixed Charge Coverage Ratio, as applicable, required at such time by Borrower pursuant Section 6.08; and
(e) STT may dividend the Capital Stock of Statewide Publishing to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedHoldings.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Prommis Solutions Holding Corp.), Credit and Guaranty Agreement (Prommis Solutions Holding Corp.)
Restricted Junior Payments. Borrower No Loan Party shall, nor shall not, and shall not it permit any of its Subsidiaries (excluding the Excluded Entities) through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make make, or set apart apart, or agree to declare, order, pay, make, or set apart, any sum for any Restricted Junior Payment except:
(a) the making of (i) Permitted Tax Payments and (ii) to the extent constituting a Restricted Junior Payment, the payment of fees and expenses (or the distribution of amounts used to pay such fees and expenses) incurred by Ultimate Parent in connection with (x) corporate and public company overhead costs and expenses (including administrative, legal accounting, Tax reporting, insurance and other similar expenses payable to third parties) solely attributable to the operations of the Loan Parties and their Subsidiaries (excluding the Excluded Entities) (in the good faith judgment of the Lead Borrower) that are incurred in the ordinary course of business in an aggregate amount not to exceed $10,000,000 in any Fiscal Year; PROVIDED that and (y) substantially contemporaneously with the Closing Date, the Transactions;
(b) so long as no Default or Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:Restricted Junior Payments made solely in Capital Stock of a Parent Company (other than Disqualified Capital Stock) shall be permitted so long as a Change of Control does not occur after giving effect to any such Restricted Junior Payments;
(ic) repurchase shares of its capital stock or of any corporate parent (together with options or warrants Lead Borrower may make Restricted Junior Payments in cash to Global Parent in respect of any Fiscal Quarter (a “Subject Fiscal Quarter”) following the first full Fiscal Quarter ending after the Liberty JoinderSecond Amendment Effective Date, and concurrently therewith Global Parent (and any direct or indirect parent thereof) held by present and former officersmay make Restricted Junior Payments in cash to the direct or indirect holders of its Capital Stock, directors and employees of Borrower so long as such repurchase is pursuant to(i) no Default or Event of Default shall have occurred and be continuing or would immediately result therefrom, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchasethe Total Leverage Ratio, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio calculated as of the last day of the such Subject Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) pursuant to the aggregate amount Compliance Certificate delivered in respect of any such Subject Fiscal Quarter pursuant to Section 5.01(d), after giving pro forma effect to such Restricted Junior Payment, when added does not exceed the level indicated in Section 6.08(b) for such Subject Fiscal Quarter, (iii) the Dividend Fixed Charge Coverage Ratio, calculated for such Subject Fiscal Quarter pursuant to the aggregate amount Compliance Certificate delivered in respect of all such Subject Fiscal Quarter pursuant to Section 5.01(d), after giving pro forma effect to such Restricted Junior Payments previously declared Payment and any mandatory prepayments required to be paid under the Section 2.13(e), is not less than 1.25:1.00 for such Subject Fiscal Quarter, (iv) such Restricted Junior Payment in respect of such Subject Fiscal Quarter (A) is equal to an amount funded solely from the proceeds of Capital Stock of Ultimate Parent or (without duplicationB) paid by Borrower on or after January 1, 2021, is equal to an amount not to exceed the lesser of (x) 50% of Consolidated Excess Cash Flow of the Fiscal Quarter immediately preceding such Subject Fiscal Quarter and (y) the Permitted Dividend Amount, and, in each case, if made pursuant to this clause (iv)(B) shall be made concurrently with any mandatory prepayments required to be paid under the Section 2.13(e), and (v) during on a pro forma basis, after giving effect to such Restricted Junior Payment, Consolidated Liquidity is $30,000,000 or more and (vi) the period commencing prior two consecutive Fiscal Quarters were not Cure Quarters;
(d) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the repayment or prepayment of all or any part of the principal on any Indebtedness owed by any Loan Party or any of their respective Subsidiaries (excluding the Closing Date Excluded Entities) to any of a Parent Company; provided, that any interest, fees and ending expenses thereon may accrue so long as such interest, fees and expenses are not paid in cash until payment in full of all Obligations;
(e) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the making of cash payments to Global Parent to redeem, retire, purchase or otherwise acquire the shares of Capital Stock of the Lead Borrower issued or sold to Global Parent in reliance on Section 6.19(b) and not constituting Curative Equity; provided, that cash payments made in reliance on this clause (e) shall not exceed, in the Declaration Dateaggregate, does the amounts paid to Lead Borrower by Global Parent in exchange for such shares of Capital Stock; and
(f) Restricted Junior Payments (x) made by Global Parent using the proceeds of any substantially concurrent cash capital contributions received by Global Parent from Ultimate Parent or (y) deemed made by Global Parent as a result of Restricted Junior Payments made by Ultimate Parent on behalf of Global Parent; provided that, in each case, any proceeds actually received in cash from Ultimate Parent for use pursuant to this clause (f) (1) shall not exceed 50% be considered Curative Equity and shall be disregarded for purposes of cumulative Consolidated Net Income calculation any financial covenant and (2) amounts contributed in such Fiscal Quarter, amounts contributed in any prior Fiscal Quarter that have not been distributed as of Borrower such Fiscal Quarter and amounts distributed in such Fiscal Quarter must all be designated in the Compliance Certificate; provided that, notwithstanding anything to the contrary contained herein, in no event shall any Loan Party make any Restricted Junior Payment that results in the transfer of ownership (directly or indirectly) of any Material Intellectual Property (except for non-exclusive licenses of patents, trademarks, and other intellectual property rights granted by any Loan Party or any of its Subsidiaries for in the period commencing on ordinary course of business and not interfering in any respect with the Closing Date and ending on the last day ordinary conduct of the Fiscal Quarter most recently endedbusiness of such Loan Party or any such Subsidiary) or any interest in any Franchise Agreement to any Person that is not a Loan Party.
Appears in 2 contracts
Samples: Credit Agreement (B. Riley Financial, Inc.), Credit Agreement (Franchise Group, Inc.)
Restricted Junior Payments. No Borrower shall not, and nor shall not any Borrower permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that (i) Company may make payments of regularly scheduled interest in respect of the Senior Subordinated Notes, in accordance with the terms of and to the extent required by, and subject to the subordination provisions contained in, the Senior Subordinated Note Indenture; (ii) Company may make repurchases of Senior Subordinated Notes in an aggregate amount not to exceed $25,000,000 (including principal, interest, premiums, fees and other expenses) so long as (x) no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused therebythereby and (y) the Consolidated Leverage Ratio, Borrower may:
after giving PRO FORMA effect to such repurchases and any Indebtedness incurred in connection therewith, for the immediately preceding four consecutive Fiscal Quarter period prior to such date of determination does not exceed 3.00:1.00; and (iiii) repurchase shares so long as (x) no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby and (y) the Consolidated Leverage Ratio for the immediately preceding four consecutive Fiscal Quarter period prior to such date of determination does not exceed 3.00:1.00, Company may make Restricted Junior Payments to Holdings (X) in an aggregate amount not to exceed $500,000 in any Fiscal Year (PROVIDED that, in the event Company changes its capital stock Fiscal Year-end from September 30 to December 31, then for such fifteen-month Fiscal Year such aggregate amount shall not exceed $625,000) in order to permit Holdings to pay general administrative costs and expenses, (Y) in an aggregate amount not to exceed in the aggregate $1,000,000 in any Fiscal Year (PROVIDED that, in the event Company changes its Fiscal Year-end from September 30 to December 31, then for such fifteen-month Fiscal Year such aggregate amount shall not exceed $1,250,000; PROVIDED FURTHER that the unused portion of such $1,000,000 (or $1,250,000 for such fifteen-month Fiscal Year) may be carried forward to the succeeding Fiscal Year, but only to an aggregate amount not to exceed $2,000,000 of such Restricted Junior Payments for any given Fiscal Year (or $2,500,000 for such fifteen-month Fiscal Year)) or $5,000,000 during the term of this Agreement PLUS the net cash proceeds of any corporate parent (together with options or warrants in respect issuance of any thereof) held by present Holdings Common Stock to Management Investors and former officers, directors other officers and employees of Borrower so long as such repurchase is pursuant to, Company and its Subsidiaries in accordance with the terms ofof the Stockholders Agreement and the Management Investment Incentive Plan, management and/or employee stock planswhich net cash proceeds have been contributed to Company, stock subscription agreements or shareholder agreements;
and (iiZ) repurchasein an amount necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchangeCompany and Company's Subsidiaries, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken each case so long as a whole, and taking into account Holdings applies the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries Payment for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedsuch purpose."
Appears in 1 contract
Restricted Junior Payments. Borrower The Credit Parties shall not, and shall not permit any of its their respective Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that so provided that:
(i) Borrower may make distributions to Holdings for tax obligations incurred by Holdings as a result of the capital structure of Borrower and its Subsidiaries or the operations or business of the Borrower and its Subsidiaries including the pass-through of income to Holdings from the Credit Parties or as a result of the disposition by Borrower of any interest in a Credit Party (including capital gains taxes);
(ii) as long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused therebyresult therefrom, Borrower may:
may make Cash advances (i) repurchase shares any such advance by Borrower or direct payment by Borrower or any of its capital stock or Subsidiaries in lieu of any corporate parent making such advance, being a “Holdings Advance”) to Holdings in an amount sufficient to enable Holdings to pay reasonable and customary fees, costs and expenses incurred by Holdings (together with options or warrants and not payable to Affiliates of Holdings) in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance connection with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
public issuance of Securities of Holdings (iiprovided that each such Holdings Advance is evidenced by a promissory note (which may consist of one master note that covers all Holding Advances from time to time) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amountpayable on demand by Borrower);
(iii) purchase, redeem as long as no Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom and the Borrower is in compliance with the Financial Covenants set forth in subsection 7.6 based upon the most recently ended Fiscal Quarter for which financial statements are available (and Borrower shall have delivered to Administrative Agent a Compliance Certificate to such effect): Borrower may make Cash advances to Holdings in an amount sufficient to enable Holdings to repurchase and (except for holding the applicable repurchased public Securities as treasury stock) retire or otherwise acquire shares terminate up to an aggregate amount which, together with the aggregate amount of common stock Cash dividends permitted to be made pursuant to clause (v) below, does not exceed the applicable Available Restricted Payments Amount, of Borrower or warrants or options to acquire the public Securities of Holdings in any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stockFiscal Year;
(iv) redeem as long as no Event of Default or exchange, Potential Event of Default has occurred and is continuing or would result therefrom: Borrower may make Cash advances to Holdings in whole an amount sufficient to enable Holdings to repurchase and (except for holding the applicable repurchased public Securities as treasury stock) retire or otherwise terminate annually up to an aggregate of Two Million Five Hundred Thousand Dollars ($2,500,000) of the Securities of Holdings held by current or former employees of any Credit Party to reimburse such current or former employees for tax liabilities incurred in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares connection with the vesting of such other class Securities;
(v) as long as no Event of capital stock; PROVIDED Default or Potential Event of Default has occurred and is continuing or would result therefrom and the Borrower is in compliance with the Financial Covenants set forth in subsection 7.6 based upon the most recently ended Fiscal Quarter for which financial statements are available, Borrower may declare and pay Cash dividends to Holdings for the sole purpose of paying Cash dividends to Holdings’ stockholders, provided that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained Cash dividends may not exceed in the capital stock redeemed or exchanged thereforaggregate, together with the aggregate amount of Cash advances permitted to be made pursuant to clause (iii) above, the applicable Available Restricted Payments Amount;
(vi) [reserved]; and
(vvii) so long as no Event of Default has occurred under subsection 8.1, 8.6 or 8.7, Borrower may (a) make other Restricted Junior Payments; PROVIDED that regularly scheduled interest (at the non-default rate) and principal payments on the date Permitted Seller Notes and (b) make prepayments of the "DECLARATION DATE") of declaration of any dividend Permitted Seller Notes, in respect of Borrower's outstanding capital stock pursuant each case to the terms of this clause (v) or extent not prohibited by the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedsubordination provisions thereof.
Appears in 1 contract
Restricted Junior Payments. Borrower Borrowers shall not, and shall not permit any of its their Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, except:
(i) Borrowers may make regularly scheduled or required payments of principal and interest in respect of any Other Indebtedness of Borrowers in accordance with the terms of, and only to the extent required by the agreement pursuant to which such Other Indebtedness was issued provided that (a) any such payments shall be subject to the terms of the Intercreditor Agreement, the Xxxxxxx Intercreditor Agreement, the Xxxxxxx Subordination Agreement, the Xxxxxxx Completion Guaranty and any FF&E Intercreditor Agreements, as applicable, (b) any such payments in respect of any Completion Guaranty Note and any Employee Repurchase Note may be made only to the extent no Event of Default or Potential Event of Default shall then exist and be continuing or would result therefrom and (c) any such payments in respect of any Employee Repurchase Note may be made only to the extent that the ratio of Consolidated Adjusted EBITDA without giving effect to any Conforming Xxxxxxx L/C pursuant to the last sentence of the definition of Consolidated Adjusted EBITDA to Consolidated Fixed Charges for the four Fiscal Quarter period ended on the most recent Quarterly Date preceding such payment or such shorter period tested on such Quarterly Date under subsection 7.6A (determined on a pro forma basis (as though such payment on the Employee Repurchase Note had been made during the period tested as of such Quarterly Date under subsection 7.6A) would have been in compliance with the requirements of Section 7.6A as certified to Administrative Agent by the chief financial officer of Borrowers, on behalf of Borrowers, at the time of such payment;
(ii) Borrowers and Mall Construction Subsidiary may prepay the FF&E Facility from the portion of any Loss Proceeds required to be so applied in accordance with the FF&E Facility and in accordance with the FF&E Intercreditor Agreement;
(iii) [Intentionally omitted];
(iv) [Intentionally omitted];
(v) [Intentionally omitted];
(vi) Borrowers and their Subsidiaries may redeem or purchase any equity interests in Borrowers or their Subsidiaries or any Indebtedness to the extent required by any Nevada Gaming Authority in order to preserve a material Gaming License, provided that so long as such efforts do not jeopardize any material Gaming License, Borrowers shall have diligently tried to find a third-party purchaser for such equity interests or Indebtedness and no third-party purchasers acceptable to the Nevada Gaming Authority is willing to purchase such equity interests or Indebtedness within a time period acceptable to the Nevada Gaming Authority;
(vii) for so long as LVSI is a corporation under Subchapter S of the Code or a substantially similarly treated pass-through entity or Venetian is a limited liability company that is treated as a partnership or a substantially similarly treated pass-through entity for Federal income tax purposes (as evidenced by an opinion of counsel at least annually), Borrowers may each make cash distributions to shareholders or members, during each Quarterly Period, in an aggregate amount not to exceed the Permitted Quarterly Tax Distribution in respect of the related Estimation Period, and if any portion of the Permitted Quarterly Tax Distribution is not distributed during such Quarterly Payment Period, the Permitted Quarterly Tax Distribution payable during the immediately following four quarter period shall be increased by such undistributed portion; PROVIDED provided that Borrowers may not make any such distribution to pay taxes attributable to income of New Mall Subsidiary or Phase II Subsidiary or any of their subsidiaries unless Borrowers have received from the applicable holding companies of New Mall Subsidiary or Phase II Subsidiary, as applicable, a cash distribution for such purpose in respect of the applicable Estimation Period in an equal amount;
(viii) Borrowers and their wholly-owned Subsidiaries may make intercompany payments between such entities and intercompany payments from any Subsidiary of a Borrower to any wholly-owned Subsidiary of Borrowers or any Borrower;
(ix) Borrowers may make Permitted Employee Repurchases so long as (a) no Event of Default or Potential Event of Default shall exist and be continuing or would result therefrom and (b) the ratio of Consolidated Adjusted EBITDA without giving effect to any Conforming Xxxxxxx L/C pursuant to the last sentence of the definition of Consolidated Adjusted EBITDA to Consolidated Fixed Changes for the four Fiscal Quarter period ended as of the most recent Quarterly Date prior to such repurchase or such shorter period tested on such immediately preceding Quarterly Date under subsection 7.6A (determined on a pro forma basis as though such Permitted Employee Repurchase had been made during the period tested as of such Quarterly Date under subsection 7.6A) would have been in compliance with the requirements of subsection 7.6A as certified to Administrative Agent by the chief financial officer of Borrowers, on behalf of Borrowers, at the time of such payment;
(x) Borrowers may make repurchases of capital stock of LVSI deemed to occur upon exercise of stock options to the extent such capital stock represents a portion of the exercise price of such options; and
(xi) Borrowers may make payments on any Completion Guaranty Loan (a) prior to Final Completion, from amounts permitted to be deposited in the Guaranty Deposit Account subject to the terms of the Xxxxxxx Completion Guaranty and the Disbursement Agreement, (b) on Final Completion Date from amounts which are advanced to Borrowers pursuant to subsection 2.12 of the Disbursement Agreement for the purpose of making such payments, (c) after Final Completion Date from Liquidated Damages and (d) on Final Completion Date, from amounts which are returned to Mall Construction Subsidiary from funds in the Mall Retainage/Punchlist Account in accordance with the Mall Escrow Agreement, up to the aggregate amount previously deposited into the Mall Retainage/Punchlist Account from the Guaranty Deposit Account, provided in each case that such payments shall be permitted only to the extent allowed under the Xxxxxxx Intercreditor Agreement and only so long as no Event of Default or Potential Event of Default has occurred shall then exist and is be continuing or would be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedresult therefrom.
Appears in 1 contract
Restricted Junior Payments. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that so long as no Event (a) the Borrower may make regularly scheduled payments of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants interest in respect of the Senior Subordinated Notes and of any thereofSubordinated Indebtedness issued in accordance with Sections 6.1(g) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and (h) hereof in accordance with the terms of, management and/or employee and only to the extent required by, and subject to the subordination provisions contained in, the Senior Subordinated Indenture or the indenture pursuant to which such other Subordinated Indebtedness is issued, as the case may be, in each case, as such indenture may be amended from time to time to the extent permitted under Section 6.13(b), (b) the Borrower may make Restricted Junior Payments pursuant to and in accordance with stock option plans, stock subscription agreements purchase plans or shareholder agreements;
(ii) repurchase, redeem, defease other benefit plans for management or otherwise prepay employees of the Borrower or retire Senior Subordinated Debt any Subsidiary including the redemption or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire purchase of shares of common stock of the Borrower held by former employees of the Borrower or warrants or options any Subsidiary following the termination of their employment, in an amount not to acquire exceed $500,000 (plus any such shares with proceeds amounts received by the Borrower after the Closing Date and prior to making such Restricted Junior Payment from substantially concurrent equity contributions or issuances the issuance of new additional shares of its common stock;
stock to members of management or employees of the Borrower and its Subsidiaries), (ivc) redeem the Borrower may make cash dividends and repurchase Capital Stock of the Borrower in an aggregate amount not to exceed $10,000,000 per Fiscal Year so long as the Consolidated Pro Forma Leverage Ratio shall not exceed 3.00 to 1.0 both before and after giving pro forma effect to each such Restricted Junior Payment, and (d) the Borrower may make Restricted Junior Payments with proceeds from an Equity Issuance or exchangefrom the issuance of Subordinated Indebtedness, in whole each case, in replacement of, or in partexchange for, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchangeSubordinated Indebtedness permitted under Section 6.1(g) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the extent such Equity Issuance or Subordinated Indebtedness is issued on terms of this clause reasonably satisfactory to the Administrative Agent; provided that in each case (vi) or the making of any other Borrower shall be in pro forma compliance with Section 6.6 both before and after giving pro forma effect to each such Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Yii) the aggregate amount no Event of Default shall have occurred and be continuing or would otherwise arise as a result of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.
Appears in 1 contract
Samples: Credit Agreement (Pantry Inc)
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly Directly or indirectly, indirectly declare, order, pay, make or set apart any sum for any Restricted Junior Payment, except that: (i) Subsidiaries of any Borrower may make Restricted Junior Payments with respect to their common stock or other equity interest which Restricted Junior Payment shall be applied to pay the Senior Debt in accordance with its terms and, after payment in full thereof, the Obligations; PROVIDED that (ii) so long as no Default or Event of Default is occurring or Potential continuing and after giving effect to such payment no Default or Event of Default results (1) provided that, Recoton may repurchase capital stock issued to its employees, directors or consultants and the employees, directors or consultants, of its Subsidiaries, in an aggregate amount not to exceed $3,000,000 in cash during the term of this Agreement and (2) Borrowers may make regularly scheduled interest payments on the Subordinated Debt. Notwithstanding anything to the contrary contained herein, Recoton may repurchase shares of its capital stock which are surrendered by optionees which consideration for repurchase shall be made solely with the issuance of shares of additional stock issued upon the exercise of options granted under Recoton's stock option plans.
(a) Directly or indirectly pay or prepay any account payables to STD provided, however, so long as no Default or Event of Default has then occurred and or is continuing or would be caused thereby, Borrower maythe account payables to STD may be paid on a monthly basis, provided that all the following conditions have been met:
(i1) repurchase shares the payment to STD is within normal and customary terms and shall be payment for invoices that have remained unpaid for at least 90 days from the date of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreementsissuance;
(ii2) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage amount to be paid shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares be in excess of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor$25,000,000 per month; and
(v3) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in amounts to be repaid shall be for account payables with respect of Borrower's outstanding capital stock pursuant to the terms purchase of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedInventory from STD.
Appears in 1 contract
Samples: Credit Agreement (Recoton Corp)
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
Company may (i) repurchase shares make regularly scheduled payments of its capital stock or of any corporate parent (together with options or warrants interest in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and Subordinated Indebtedness in accordance with the terms ofof and subject to the subordination provisions contained in, management and/or employee stock plansthe indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, stock subscription agreements as such indenture or shareholder agreements;
other agreement may be amended from time to time to the extent not prohibited by this Agreement; (ii) repurchasemake Restricted Junior Payments to Holdings or United Online (a) provided such amounts are reflected in the calculation of Consolidated Net Income, redeemto the extent necessary to permit Holdings to pay Company’s allocated share of general administrative costs and expenses to United Online, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto (b) to the Available Amount Usage shall not exceed extent necessary to permit Holdings to reimburse United Online for the Available Amount;
(iii) purchase, redeem or otherwise acquire shares allocated tax liabilities of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchangeCompany, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken each case so long as a whole, and taking into account Holdings applies the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior PaymentPayment for such purpose or to make payments under a tax sharing agreement with United Online permitted under subsection 7.9 which provides for payment by Company and its Restricted Subsidiaries of the taxes of United Online allocable to Holdings, when added to the aggregate amount of all Company and its Restricted Subsidiaries, and (c) for Equity Related Compensation Payments that constitute Restricted Junior Payments; (iii) make additional Restricted Junior Payments previously declared or to any Person at any time in an amount not to exceed (without duplicationa) paid by Borrower pursuant to this clause (v) during the period commencing on then available Annual Basket Amount; provided that at the Closing Date and ending on the Declaration Date, time of any such Restricted Junior Payment Net Revolver Usage does not exceed 50% $25,000,000, plus (b) the then available Available Basket Amount plus (b) the then available Available Equity Amount; provided that at the time any Restricted Junior Payment is made under this subsection 7.5(iii), no Potential Event of cumulative Consolidated Net Income Default or Event of Borrower Default shall have occurred and be continuing and Company and its Restricted Subsidiaries for the period commencing on the Closing Date shall be in Pro Forma Compliance; and ending on the last day of the Fiscal Quarter most recently ended(iv) Holdings may make Restricted Junior Payments with amounts funded by Company in accordance with this subsection 7.5.
Appears in 1 contract
Samples: Credit Agreement (United Online Inc)
Restricted Junior Payments. Each Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that (i) Company may redeem the Existing Senior Notes as contemplated by subsection 4.1F(iv), (ii) Company may make scheduled payments of principal in respect of any Existing Subordinated Notes not tendered pursuant to the Debt Tender Offer in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the Existing Subordinated Note Indenture, and (iii) so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower Company may:
(ia) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower Company so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(iib) repurchase, redeem, defease or otherwise prepay or retire Senior any Existing Subordinated Notes not tendered pursuant to the Debt Tender Offer on terms (set forth in the Existing Subordinated Note Indenture or Refinancing otherwise) no less favorable in any material respect to Company and Lenders than the terms of the Debt Tender Offer;
(c) repurchase, redeem, defease or otherwise prepay or retire New Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iiid) purchase, redeem or otherwise acquire shares of common stock of Borrower Company or warrants or options to acquire any such shares with proceeds received by Borrower Company from substantially concurrent equity contributions or issuances of new shares of its common stock;
(ive) redeem or exchange, in whole or in part, any capital stock of Borrower Company for shares of another class of capital stock of Borrower Company or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(vf) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of BorrowerCompany's outstanding capital stock pursuant to the terms of this clause (vf) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (vf), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower Company pursuant to this clause (vf) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower Company and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.
Appears in 1 contract
Restricted Junior Payments. Borrower Southland shall not, and shall not permit any of its Subsidiaries to, directly declare or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that , except:
(i) payments due on Subordinated Indebtedness and permitted to be made pursuant to the terms of such Subordinated Indebtedness, and repayment of Subordinated Indebtedness from the proceeds of new Subordinated Indebtedness;
(ii) any dividends or distributions to Southland on the capital stock of any of its Subsidiaries or from any of such Subsidiaries to any other of such Subsidiaries;
(iii) so long as no there does not exist an Event of Default or a Potential Event of Default under SECTION 10.01(a) or (by reason of a breach of one or more covenants set forth in ARTICLE IX) SECTION 10.01(b) or an Event of Default or such Potential Event of Default would result therefrom, Southland may repurchase or redeem its Senior Subordinated Debentures, PROVIDED that such repurchases and redemptions shall be made with the proceeds of Common Stock or Subordinated Indebtedness issued after the Effective Date;
(iv) so long as there does not exist an Event of Default or Potential Event of Default has occurred and is continuing or would be caused therebyDefault, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants payments in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such the repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower Southland arising from an election by Southland to pay a "Benefit" for "Value" pursuant to Section 9 of Southland's Equity Participation Plan or rights otherwise required or permitted pursuant to acquire shares agreements with employees of Southland, upon death, retirement or termination of employment of such other class employees, which payments (including payments on Indebtedness of capital stock; PROVIDED that Southland arising from any such other class election under its Equity Participation Plan) shall not in the aggregate exceed $2,000,000 per annum, PLUS the amount of consideration paid by the purchasers of such capital stock contains terms upon its issuance or reissuance by Southland;
(v) so long as there does not exist an Event of Default or Potential Event of Default, dividends payable in kind, but not in cash, on any class or series of Southland's preferred stock and provisions payments of cash (taken as a whole, and taking into account the relative amounts in an aggregate amount not in excess of $500,000) in lieu of the shares issuance of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged thereforfractional shares; and
(vvi) make other Restricted Junior Payments; PROVIDED that on the date payments described in CLAUSES (the "DECLARATION DATE"1) and (2) of declaration of any dividend in SECTION 8.01(xiv)(B) with respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (vIndebtedness permitted under SECTION 8.01(xiv)(B), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.
Appears in 1 contract
Samples: Credit Agreement (Southland Corp)
Restricted Junior Payments. The Borrower shall will not, and shall not nor will it permit any of its Subsidiaries Subsidiary to, directly or indirectly, declare, order, pay, pay or make or set apart any sum for any Restricted Junior Payment; PROVIDED that Payment except:
(a) (i) so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, redemptions and repurchases by the Borrower may:of Capital Stock of the Borrower from officers, directors, employees, advisors or consultants or their respective estates, trusts, family members or former spouses of any Credit Party or any Subsidiary (or their Affiliates), upon termination of employment, in connection with the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives or in connection with the death or disability of such officers, directors, employees, advisors or consultants (or Affiliate); provided that in all such cases the aggregate amount of such payments in respect of all such Capital Stock so redeemed or repurchased does not exceed in any Fiscal Year (with unused amounts in any Fiscal Year rolled over to the immediately succeeding Fiscal Year) the greater of (A) $7,500,000 and (B) an amount equal to 15% of TTM Consolidated Adjusted EBITDA, plus (1) an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or any Guarantor Subsidiary after the Closing Date, (2) the amount of net cash proceeds from the sale of Capital Stock of the Borrower (other than Disqualified Capital Stock) to officers, directors, employees, advisors or consultants, to the extent not otherwise used under this Agreement or applied to the Available Amount and (3) the amount of any cash bonuses or other compensation otherwise payable to any future, present or former director, employee, consultant or distributor of the Borrower or any Subsidiary that are foregone in return for the redemption of Capital Stock of the Borrower; and (ii) cashless repurchases of Capital Stock deemed to occur upon the exercise of stock options, warrants, settlements or vesting if such stock represents a portion of the exercise price thereof;
(b) payments in the form of Capital Stock of the Borrower (other than Disqualified Capital Stock and to the extent not otherwise used under this Agreement or applied to the Available Amount);
(c) payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock;
(d) subject to the terms of any applicable subordination provisions, the Borrower or any Subsidiary may (i) repurchase shares make all regularly scheduled payments of its capital stock or principal, interest, fees and premiums and all payments of any corporate parent (together with options or warrants indemnities and expenses in respect of any Junior Financing when due, (ii) pay customary closing, consent and similar fees related to any Junior Financing, (iii) make mandatory prepayments, mandatory redemptions and mandatory purchases, in each case pursuant to the terms governing any Junior Financing as in effect on the date of incurrence or issuance (including in connection with a refinancing thereof) held of such Junior Financing, (iv) prepay Indebtedness (A) of the Borrower or any Subsidiary owed to the Borrower or any Guarantor Subsidiary, (B) of any Non-Credit Party owed to any Non-Credit Party or (C) of the Borrower or any Guarantor Subsidiary to any Non-Credit Party to the extent the amount of such prepayment is treated as an Investment in Non-Credit Parties and may be made in compliance with Section 6.6, (v) prepay or refinance any Junior Financing (including the payment of any premium in connection therewith) with the proceeds of any other Junior Financing otherwise permitted by present Section 6.1 (including any Permitted Refinancing thereof) and former officers(vi) convert any Junior Financing to Capital Stock (other than Disqualified Capital Stock) of the Borrower;
(e) the declaration and payment of any dividend or other Restricted Equity Payment by any Subsidiary of the Borrower on a ratable basis to its equity holders;
(f) Restricted Junior Payments in an aggregate amount not to exceed the Available Amount as in effect immediately before such Restricted Junior Payment; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) the Total Net Leverage Ratio at the time of (and after giving effect to) the making such Restricted Junior Payment is less than or equal to 5.25:1.00;
(g) Restricted Equity Payments and Restricted Debt Payments, directors and employees of Borrower so long as (i) no Default or Event of Default has occurred and is continuing at such repurchase is pursuant to, time or would result after giving effect to such Restricted Equity Payment or Restricted Debt Payment and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed Total Net Leverage Ratio at the Available Amount;
time of making such Restricted Junior Payment (iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts making of such Restricted Equity Payment or Restricted Debt Payment and the shares use of each class of capital stock involved in such redemption proceeds thereof) is less than or exchange) that are at least as advantageous equal to Lenders as those contained in the capital stock redeemed or exchanged therefor3.35:1.00; and
(vh) make other as long as no Default or Event of Default has occurred and is continuing at such time or would result after giving effect thereto, Restricted Junior Payments in an aggregate amount not to exceed $10,000,000. For purposes of determining compliance with this Section 6.4:
(1) the amount set forth in Section 6.4(h) (without duplication) may, in lieu of Restricted Junior Payments; PROVIDED that on , be utilized by the date Borrower or any Subsidiary to make or hold any Investments without regard to Section 6.6;
(2) for the "DECLARATION DATE") avoidance of declaration of doubt, if the Borrower or any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of Subsidiary makes any other Restricted Junior Payment pursuant using a ratio-based test on the same date that it makes any Restricted Junior Payment under any Dollar-based Cap, then the ratio-based test will be calculated with respect to such payment under the terms ratio-based test without regard to any payment under the Dollar-based Cap;
(3) the payment of any Restricted Equity Payment within sixty (60) days after the date of declaration thereof shall be permitted if at the date of declaration such payment would have complied with the provisions of this clause Agreement; and
(v), 4) in the event that any Restricted Junior Payment (Xor any portion thereof) meets the Consolidated Leverage Ratio as criteria of more than one of the last day clauses of this Section 6.4, the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and Borrower may, in its sole discretion, at the time of making such payment, divide, classify or reclassify, or at any later time divide, classify or reclassify, such Restricted Junior Payment (Yor any portion thereof) the aggregate amount of in any manner that complies with this covenant; provided that any such Restricted Junior Payment, when added to the aggregate amount of all Payment incurred under a Dollar-based Cap may not be reclassified as a Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedPayment using a ratio-based test.
Appears in 1 contract
Restricted Junior Payments. Borrower Borrowers shall not, and shall not permit any of its their Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, except:
(i) Borrowers may make regularly scheduled payments of principal and interest in respect of any Other Indebtedness of Borrowers in accordance with the terms of, and only to the extent required by the agreement pursuant to which such Other Indebtedness was issued provided that (a) any such payments shall be subject to the terms of the Intercreditor Agreement, the Adelson Intercrexxxxx Xgreement, the Adelson Completixx Xxxxanty and the FF&E Intercreditor Agreement, as applicable, (b) any such payments in respect of the Subordinated Notes and any Completion Guaranty Note may be made only to the extent no Event of Default or Potential Event of Default shall then exist and be continuing or would result therefrom and (c) any such payments in respect of the Substitute Tranche B Note may be made only to the extent permitted pursuant to the terms of the Substitute Tranche B Note and pursuant to the terms of the Adelson Intercrexxxxx Xgreement;
(ii) Borrowers and their Subsidiaries may redeem or purchase any equity interests in Borrowers or their Subsidiaries or any Indebtedness to the extent required by any Nevada Gaming Authority in order to preserve a material Gaming License, provided that so long as such efforts do not jeopardize any material Gaming License, Borrowers shall have diligently tried to find a third-party purchaser for such equity interests or Indebtedness and no third-party purchasers acceptable to the Nevada Gaming Authority is willing to purchase such equity interests or Indebtedness within a time period acceptable to the Nevada Gaming Authority;
(iii) for so long as LVSI is a corporation under Subchapter S of the Code or a substantially similarly treated pass-through entity or Venetian is a limited liability company that is treated as a partnership or a substantially similarly treated pass-through entity for Federal income tax purposes (as evidenced by an opinion of counsel at least annually), Borrowers may each make cash distributions to shareholders or members, during each Quarterly Payment Period, in an aggregate amount not to exceed the Permitted Quarterly Tax Distribution in respect of the related Estimation Period, and if any portion of the Permitted Quarterly Tax Distribution is not distributed during such Quarterly Payment Period, the Permitted Quarterly Tax Distribution payable during the immediately following four quarter period shall be increased by such undistributed portion; PROVIDED provided that Borrowers may not make any such distribution to pay taxes attributable to income of Mall Subsidiary or Phase II Subsidiary or any of their Subsidiaries unless Borrowers have received a cash distribution from Mall Subsidiary or Phase II Subsidiary, as applicable, for such purpose in respect of the applicable Estimation Period in an equal amount;
(iv) LVSI may make repurchases of capital stock of LVSI deemed to occur upon exercise of stock options to the extent such capital stock represents a portion of the exercise price of such options;
(v) Borrowers may make payments on any Completion Guaranty Loan prior to Completion Date, from amounts permitted to be deposited in the Guaranty Deposit Account subject to the terms of the Adelson Completixx Guaranty and the Disbursement Agreement;
(vi) Borrowers and their wholly-owned Subsidiaries may make intercompany payments between such entities and intercompany payments to or from any Borrower; and
(vii) Subject to subsection 6.6(iii), Borrowers may repay loans advanced pursuant to the FF&E Facility Agreement with Loss Proceeds and proceeds from the sale of assets purchased with funds advanced pursuant thereto.
(viii) Borrowers may make payments on any Completion Guaranty Loan (a) prior to Final Completion Date, from amounts permitted to be deposited in the Guaranty Deposit Account subject to the terms of the Adelson Completixx Xxxxanty and the Disbursement Agreement, (b) on Final Completion Date from amounts which are advanced to the Company pursuant to Section 2.12 of the Disbursement Agreement for the purpose of making such payments, (c) after Final Completion Date from Liquidated Damages and (d) on Final Completion Date, from funds in the Mall Retainage/Punchlist Account in accordance with the Mall Escrow Agreement, up to the aggregate amount previously deposited into the Mall Retainage/Punchlist Account from the Guaranty Deposit Account, provided in each case that such payments shall be permitted only to the extent allowed under the Adelson Intercrexxxxx Xgreement and only so long as no Event of Default or Potential Event of Default has occurred shall then exist and is be continuing or would be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedresult therefrom.
Appears in 1 contract
Samples: Credit Agreement (Grand Canal Shops Mall Construction LLC)
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED Payment except that so long as no Event (a) Company may make regularly scheduled payments of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants interest in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and Subordinated Indebtedness in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions contained in, the indenture or shareholder agreements;
other agreement pursuant to which such Subordinated Indebtedness was issued, (iib) repurchaseCompany may, redeemprior to the Second Amendment Effective Date, defease make Restricted Junior Payments to redeem or otherwise prepay repurchase the Company’s Capital Stock (a “Repurchase”) so long as (x) no Default or retire Senior Subordinated Debt Event of Default shall have occurred and be continuing or Refinancing Sub Debt; PROVIDED that be caused thereby and (y) after giving effect thereto to such Repurchase, the Available Amount Usage Leverage Ratio is 1.0x better than the Leverage Ratio required under Section 6.8(b) for the immediately preceding Fiscal Quarter, (c) Company may repurchase or redeem the Senior Subordinated Notes prior to the Second Amendment Effective Date, and (d) Company may make Restricted Junior Payments to effectuate the Stock Repurchase provided that Company shall not exceed pay more than the Available Amount;
fair market value (iiias reasonably determined by Company) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class Capital Stock of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid Company held by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedUnivision.
Appears in 1 contract
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment except that, without duplication:
(a) any Subsidiary of Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(b) Non-Recourse Subsidiaries may declare and pay dividends or make other distributions to their equity holders ratably or otherwise in accordance with their organizational documents and non-recourse project financing documents;
(c) Borrower may make Restricted Junior Payments to Holdings, and Holdings may make Restricted Junior Payments to its equity holders; provided that immediately prior to any such Restricted Junior Payment; PROVIDED that so long as , and after giving effect thereto, (1) no Event of Default shall have occurred and be continuing or Potential would result therefrom and (2) Borrower shall be in compliance on a pro forma basis with each of the financial covenants set forth in Section 6.7;
(d) Borrower and Holdings may make Permitted Tax Distributions;
(e) to the extent any cash payment and/or delivery of Parent’s common stock (or other securities or property following a merger event or other change of the common stock of Parent) by Holdings or Borrower in satisfaction of its exchange obligation or obligations to purchase notes for cash under any Permitted Exchangeable Bond Indebtedness constitutes a Restricted Junior Payment, Holdings and/or Borrower may make such Restricted Junior Payments;
(f) Holdings and/or Borrower may settle or terminate any Permitted Warrant Transaction (including by set-off or netting, if applicable); provided that, in the case where Holdings and/or Borrower voluntarily elects to satisfy its exercise or settlement or termination obligations under any Permitted Warrant Transaction in cash, after giving effect to any such cash payment (with the effect of any such cash payment determined after also giving effect to the satisfaction of any related settlement obligations of any Permitted Hedge Transaction), (x) no Event of Default has occurred shall exist or result therefrom and is continuing or would (y) the Borrower shall be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance pro forma compliance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(iicovenant set forth in Section 6.7(b) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall Fiscal Quarter preceding such cash payment;
(g) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Holdings or Parent held by any current or former officer, director, employee or consultant of Holdings or any of its Subsidiaries or the Parent pursuant to any equity subscription agreement, stock option agreement, restricted stock grant, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $5,000,000 in any calendar year (with unused amounts in any calendar being carried over to succeeding calendar years); and provided further that such amount in any calendar year may be less than 4.00:1.00 increased by an amount not to exceed the cash proceeds from (i) the sale of Equity Interests of Holdings or the Parent received by Holdings or a Subsidiary during such calendar year, in each case to members of management, directors or consultants of Holdings, any of its Subsidiaries or the Parent and (Yii) key man life insurance policies received by Holdings or any of its Subsidiaries in such calendar year; and
(h) cash distributions to the holders of Equity Interests of Holdings in respect of, and paid in the quarter subsequent to, Holdings’ fiscal quarters ending December 31, 2014 and March 31, 2015, in accordance with its Organizational Documents, in an aggregate amount of any such Restricted Junior Payment, when added not to the aggregate amount of all Restricted Junior Payments previously declared or exceed (without duplicationi) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day $37.5 million in respect of the Fiscal Quarter most recently endedending December 31, 2014 and (ii) $45.0 million in respect of the Fiscal Quarter ending March 31, 2015.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (TerraForm Power, Inc.)
Restricted Junior Payments. Borrower Holdings and Borrowers shall not, and shall not permit any of its their respective Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that provided that:
(i) Company and Arris may make Restricted Junior Payments to Holdings to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose;
(ii) So long as no Event of Default or Potential Event of Default shall have occurred and is continuing, Company and Arris may make Restricted Junior Payments to Holdings to the extent necessary to permit Holdings to pay accounting or legal or 132 administrative expenses or reimbursements or franchise, or similar taxes and governmental charges incurred by Holdings and relating to the business, operations or finances of the Borrowers and their Subsidiaries in an aggregate amount not to exceed $500,000 in any Fiscal Year, so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose;
(iii) So long as (i) no Event of Default has occurred and is continuing, (ii) the Mandatory Exchange Event has occurred and (iii) Arris would have been permitted to make Restricted Junior Payment pursuant to clause (vii) below if the Mandatory Exchange Event had not occurred, Company and Arris may make Restricted Junior Payments to Holdings to the extent necessary to permit Holdings to make the payments permitted by subsection 7.5(viii), so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose;
(iv) So long as (i) no Event of Default has occurred and is continuing pursuant to subsection 8.1, 8.6 or 8.7, or (ii) no blockage notice has been delivered in accordance with the terms of the Convertible Subordinated Note Indenture, Company and Arris may make Restricted Junior Payments to Holdings to the extent necessary to permit Holdings to make scheduled cash interest payments on any Indebtedness incurred by Holdings in accordance with subsection 7.1(ix), so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose;
(v) So long as no Event of Default or Potential Event of Default has occurred and is continuing continuing, Company, Arris, or would be caused therebytheir Subsidiaries may make Restricted Junior Payments to Holdings to permit Holdings to purchase, Borrower may:
(i) repurchase shares redeem, retire or otherwise acquire Capital Stock of its capital stock Holdings, or of any corporate parent (together with options or warrants to purchase such Capital Stock, held by officers, directors, or employees of Holding, Company, Arris or any Subsidiary thereof pursuant to a compensation plan or arrangement in respect connection with the death, disability or termination of employment of any thereof) held by present and former officerssuch officer, directors and employees director or employee in an aggregate amount for all such transactions not exceeding the sum of Borrower $1,000,000 in any Fiscal Year or $3,000,000 during the term of this Agreement, so long as such repurchase is pursuant to, and in accordance with Holdings applies the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior PaymentPayment for such purpose;
(vi) So long as (i) no Event of Default has occurred and is continuing pursuant to subsection 8.1, 8.6 or 8.7, or (ii) no blockage notice has been delivered in accordance with the terms of the Convertible Subordinated Note Indenture, Company may make scheduled cash interest payments on the Convertible Subordinated Notes to the extent required by the Convertible Subordinated Notes and the Convertible Subordinated Note Indenture;
(vii) Arris may make cash redemptions of the Arris New Membership Interest in accordance with the terms of the Amended and Restated Arris Membership Agreement after the six month anniversary of the Closing Date once during each Fiscal Quarter ending after such six month anniversary, in an aggregate amount not to exceed 133 143 $33,000,000 in any such Fiscal Quarter, so long as (a) prior to the date on which such cash redemption is made, Borrowers have delivered to the Agents and Lenders all financial statements, compliance certificates and other documents required to be delivered in connection with the immediately preceding Fiscal Quarter pursuant to this Agreement, (b) immediately before and after giving pro forma effect to such cash redemption, no Event of Default shall have occurred and be continuing, (c) immediately before and after giving pro forma effect to such cash redemption, the Borrowers shall have Excess Availability of at least $75 million and (d) the Borrowers shall have delivered an officer's certificate of Company signed by the chief financial officer of Company certifying as to the foregoing clauses (a)-(c) and attaching a Borrowing Base Certificate demonstrating such Excess Availability, in each case in form and substance satisfactory to Administrative Agent; provided that, with respect to the fourth Fiscal Quarter of any Fiscal Year, Borrowers shall be deemed to have satisfied the that part of the condition contained in clause (a) above requiring the delivery of financial statements upon delivery of unaudited financial statements in lieu of audited financial statements and a certificate signed by the chief financial officer of Company certifying that, when added delivered, the audited financial statements shall not contain any material differences from the unaudited financial statements; and
(viii) If Holdings has issued any Preferred Holdings Stock or Subordinated Holdings Indebtedness in connection with the Mandatory Exchange Event, Holdings may make cash redemptions on such Preferred Holdings Stock and/or payments on such Subordinated Holdings Indebtedness equal to the aggregate amount amounts that Arris would have been permitted to pay as cash redemptions under clause (vii) above if such Mandatory Exchange Event had not occurred, so long as in the case of all any proposed redemption or other payment (A) Arris would have been permitted to make such cash redemptions pursuant to clause (vii) above, (B) Company and/or Arris have made a Restricted Junior Payments previously declared Payment in accordance with clause (iii) above to allow Holdings to make such cash redemption or other payment and (without duplicationC) all of the requirements set forth in subclauses (a)-(d) of clause (vii) above have been satisfied; provided, however, that if in addition to issuing Preferred Holdings Stock and/or Subordinated Holdings Indebtedness in connection with such Mandatory Exchange Event, Holdings issues common stock in exchange for some portion of the Arris New Membership Interests, the amount permitted to be paid by Borrower pursuant to this clause (vviii) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% shall be reduced pro rata to reflect such issuance of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedcommon stock.
Appears in 1 contract
Samples: Credit Agreement (Arris Group Inc)
Restricted Junior Payments. Borrower The Credit Parties shall not, and shall not permit any of its their respective Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that so (i) Borrower may make distributions to Holdings or NewHoldco for tax obligations incurred by Holdings or NewHoldco as a result of the capital structure of Holdings, NewHoldco and the Credit Parties or the operations or business of the Borrower and its Subsidiaries including the pass-through of income to Holdings or NewHoldco from the Credit Parties or as a result of the disposition by Holdings or NewHoldco of any interest in a Credit Party (including capital gains taxes); (ii) as long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused therebyresult therefrom: (a) Borrower may make Cash advances (any such advance by Borrower or direct payment by Borrower or any of its Subsidiaries in lieu of making such advance, being a “Holdings Advance”) to Holdings or NewHoldco in an amount sufficient to enable Holdings to pay reasonable and customary fees, costs and expenses incurred by Holdings (and not payable to Affiliates of Holdings) in connection with the public issuance of Securities of Holdings (provided that each such Holdings Advance is evidenced by a promissory note (which may consist of one master note that covers all Holding Advances from time to time) payable on demand by Borrower) and (b) on or after the applicable Permitted Dividend Date, Borrower may:
(i) repurchase shares of its capital stock may pay dividends to Holdings or of any corporate parent (together with options NewHoldco to permit Holdings or warrants NewHoldco to pay interest, dividends or other coupon in respect of any thereof) held by present Permitted Equity Financings in an aggregate amount not to exceed the corresponding amount of interest, dividends or other coupon then due and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and payable in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after without giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
to any default, optional condition or other contingency) of such Permitted Equity Financings; and (iii) purchase, redeem as long as no Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom and the Consolidated Total Debt Ratio at such time and immediately prior to and after (on a pro forma basis giving effect to the repurchase) is less than 5.00:1.00 (and Borrower shall have delivered to Administrative Agent a Compliance Certificate to such effect): Borrower may make Cash advances to Holdings or NewHoldco in an amount sufficient to enable Holdings to repurchase and (except for holding the applicable repurchased public Securities as treasury stock) retire or otherwise acquire shares terminate up to an aggregate of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
Twenty-Five Million Dollars (iv$25,000,000) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares public Securities of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in Holdings during the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms term of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedAgreement.
Appears in 1 contract
Restricted Junior Payments. Borrower Holdings and Company shall not, and shall not permit any of its their Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that (i) Company may make -------- regularly scheduled payments of interest in respect of any Subordinated Indebtedness or any Refinancing thereof in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness or Refinancing was issued, as such indenture or other agreement may be amended from time to time to the extent permitted under subsection 7.15B, and (ii) so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
Company may make Restricted Junior Payments to Holdings: (ia) repurchase shares of its capital stock in an aggregate amount not to exceed $100,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses; (b) to the extent necessary to permit Holdings to pay cash interest payments on the Holdings Discount Notes or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debtthereof when contractually required; PROVIDED provided that after giving effect thereto to such Restricted Junior Payments under this -------- clause (b), without duplication of amounts, Company and its Subsidiaries shall be in Pro Forma Financial Covenant Compliance; (c) to the Available Amount Usage shall not exceed extent necessary to permit Holdings to discharge the Available Amount;
(iii) purchase, redeem or otherwise acquire shares consolidated tax and franchise liabilities of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of Holdings and its common stock;
(iv) redeem or exchangeSubsidiaries, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken each case so long as a whole, and taking into account Holdings applies the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added Payment for such purpose; (d) to the extent necessary to permit Holdings to pay Transaction Costs; and (e) management fees payable to Holdings in an annual aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedexceeding $50,000 in each calendar year.
Appears in 1 contract
Samples: Credit Agreement (Price Communications Wireless Inc)
Restricted Junior Payments. The Borrower shall will not, and shall not nor will it permit any of its Subsidiaries Subsidiary to, directly or indirectly, declare, order, pay, pay or make or set apart any sum for any Restricted Junior Payment; PROVIDED that Payment except:
(a) (i) so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, redemptions and repurchases by the Borrower may:of Capital Stock of the Borrower from officers, directors, employees, advisors or consultants or their respective estates, trusts, family members or former spouses of any Credit Party or any Subsidiary (or their Affiliates), upon termination of employment, in connection with the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives or in connection with the death or disability of such officers, directors, employees, advisors or consultants (or Affiliate); provided that in all such cases the aggregate amount of such payments in respect of all such Capital Stock so redeemed or repurchased does not exceed in any Fiscal Year (with unused amounts in any Fiscal Year rolled over to the immediately succeeding Fiscal Year) the greater of (A) $7,500,000 and (B) an amount equal to 15% of TTM Consolidated Adjusted EBITDA, plus (1) an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or any Guarantor Subsidiary after the Closing Date, (2) the amount of net cash proceeds from the sale of Capital Stock of the Borrower (other than Disqualified Capital Stock) to officers, directors, employees, advisors or consultants, to the extent not otherwise used under this Agreement or applied to the Available Amount and (3) the amount of any cash bonuses or other compensation otherwise payable to any future, present or former director, employee, consultant or distributor of the Borrower or any Subsidiary that are foregone in return for the redemption of Capital Stock of the Borrower; and (ii) cashless repurchases of Capital Stock deemed to occur upon the exercise of stock options, warrants, settlements or vesting if such stock represents a portion of the exercise price thereof;
(b) payments in the form of Capital Stock of the Borrower (other than Disqualified Capital Stock and to the extent not otherwise used under this Agreement or applied to the Available Amount);
(c) payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock;
(d) subject to the terms of any applicable subordination provisions, the Borrower or any Subsidiary may (i) repurchase shares make all regularly scheduled payments of its capital stock or principal, interest, fees and premiums and all payments of any corporate parent (together with options or warrants indemnities and expenses in respect of any Junior Financing when due, (ii) pay customary closing, consent and similar fees related to any Junior Financing, (iii) make mandatory prepayments, mandatory redemptions and mandatory purchases, in each case pursuant to the terms governing any Junior Financing as in effect on the date of incurrence or issuance (including in connection with a refinancing thereof) held of such Junior Financing, (iv) prepay Indebtedness (A) of the Borrower or any Subsidiary owed to the Borrower or any Guarantor Subsidiary, (B) of any Non-Credit Party owed to any Non-Credit Party or (C) of the Borrower or any Guarantor Subsidiary to any Non-Credit Party to the extent the amount of such prepayment is treated as an Investment in Non-Credit Parties and may be made in compliance with Section 6.6, (v) prepay or refinance any Junior Financing (including the payment of any premium in connection therewith) with the proceeds of any other Junior Financing otherwise permitted by present Section 6.1 (including any Permitted Refinancing thereof) and former officers(vi) convert any Junior Financing to Capital Stock (other than Disqualified Capital Stock) of the Borrower;
(e) the declaration and payment of any dividend or other Restricted Equity Payment by any Subsidiary of the Borrower on a ratable basis to its equity holders;
(f) Restricted Junior Payments in an aggregate amount not to exceed the Available Amount as in effect immediately before such Restricted Junior Payment; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) the Total Net Leverage Ratio at the time of (and after giving effect to) the making such Restricted Junior Payment is less than or equal to 5.25:1.00;
(g) Restricted Equity Payments and Restricted Debt Payments, directors and employees of Borrower so long as (i) no Default or Event of Default has occurred and is continuing at such repurchase is pursuant to, time or would result after giving effect to such Restricted Equity Payment or Restricted Debt Payment and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed Total Net Leverage Ratio at the Available Amount;
time of making such Restricted Junior Payment (iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other such Restricted Junior Equity Payment pursuant to or Restricted Debt Payment and the terms use of this clause (v), (Xproceeds thereof) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be is less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.equal to
Appears in 1 contract
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for Make any Restricted Junior Payment; PROVIDED that provided, however, that, so long as it is permitted by law,
(a) so long as no Default or Event of Default or Potential Event of Default has shall have occurred and is be continuing or would be caused therebyresult therefrom, Borrower may:
may make distributions to current or former employees, officers, or directors of Borrower (i) repurchase shares of its capital stock or any spouses, ex-spouses, trusts or estates of any corporate parent (together with options of the foregoing) on account of redemptions, purchase, retirement or warrants in respect other acquisition for value of any thereof) Stock of Borrower held by present and former officerssuch Persons, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
either (ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (YA)(1) the aggregate amount of such redemptions, purchases, retirement, other acquisitions for value, or payments made by Borrower since June 18, 2013 does not exceed $2,000,000 in the aggregate or $500,000 in any 12 month period and (2) any such redemptions, purchases, retirement, other acquisitions for value, or payments since June 18, 2013 in excess of $500,000 in the aggregate shall only be made if (x) if the Existing ABL Credit Agreement is in effect (and is an asset based loan containing “Availability” criteria) immediately after such Restricted Junior Payment, when added Borrower and Guarantors shall have Excess Availability (as defined in the Existing ABL Credit Agreement as in effect on the date hereof) of at least $7,500,000 immediately thereafter and (y) if immediately after such Restricted Junior Payment, the Existing ABL Credit Agreement is no longer in effect and/or is not an asset based loan or otherwise does not have any “Availability” criteria, Borrower and Guarantors shall have a Minimum Liquidity of at least $7,500,000 immediately thereafter or (B) otherwise the Additional Basket Conditions are met,
(b) Borrower may make distributions to current or former employees, officers, or directors of Borrower (or any spouses, ex-spouses, trusts or estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons owing to Borrower on account of repurchases of the Stock of Borrower held by such Persons; provided that such Indebtedness was incurred by such Persons solely to acquire Stock of Borrower,
(c) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Additional Basket Conditions are met, Borrower may make distributions or payments (including payments in respect of Permitted Preferred Stock),
(d) Borrower’s Subsidiaries may make distributions to Borrower for the sole purpose of allowing Borrower to, and Borrower shall use the proceeds thereof solely to make payments, to the aggregate amount extent that such payments are required in the ordinary course of all Restricted Junior Payments previously declared business and relate directly to Borrower and its Subsidiaries, or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing services provided for or on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income behalf of Borrower and its Subsidiaries, in each case that are required to be paid in cash, when due of (i) corporate franchise fees and taxes actually owed by Borrower, (ii) legal and accounting and other professional fees and expenses actually incurred by Borrower, (iii) costs incurred to comply with Borrower’s reporting obligations under federal or state laws or as required to comply with the ABL Loan Documents, the Notes Documents or the Loan Documents, (iv) other customary corporate overhead expenses and other operations conducted by Borrower, in each case, in the ordinary course of business, and (v) purchase consideration with respect to an Acquisition permitted under this Agreement;
(e) so long as Borrower is permitted to make the payments permitted by this Section 6.9, Borrower’s Subsidiaries may make dividends or distributions to Borrower for the period commencing on purpose of permitting Borrower to make such payments and Borrower agrees to use the Closing Date and ending on proceeds of such dividends or distributions solely for such purpose;
(f) the last day payment of any dividend or other distribution on, or the consummation of any irrevocable redemption of, Stock in Borrower or any Subsidiary within 60 days after declaration or setting the record date for redemption thereof, as applicable, if at such date such payment would not have been prohibited by the provisions of this Section 6.9;
(g) the retirement of any Stock of Borrower by conversion into, or by or in exchange for, Stock (other than Prohibited Preferred Stock), or out of net cash proceeds of the Fiscal Quarter most recently endedsale (other than to a Subsidiary of Borrower) of Stock (other than Prohibited Preferred Stock) of Borrower occurring within 60 days prior to such retirement, or the making of other Restricted Junior Payments out of the net cash proceeds of the sale (other than to a Subsidiary of Borrower) of Stock (other than Prohibited Preferred Stock) of Borrower occurring within 60 days prior to such Restricted Junior Payment;
(h) repurchase of Stock of Borrower deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities to the extent such Stock represents a portion of the exercise price of those stock options, warrants or other convertible or exchangeable securities or repurchase of such Stock to the extent the proceeds of such repurchase are used to pay taxes incurred by the holder thereof as a result of the issuance or grant thereof; and
(i) cash payment, in lieu of issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for the Stock of Borrower or a Subsidiary thereof.
Appears in 1 contract
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that Company may make Restricted Junior Payments:
(i) to Holdings in an aggregate amount not to exceed $1,000,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses directly attributable to Company and its Subsidiaries;
(ii) so long as no Event of Default shall have occurred and be continuing or shall be caused thereby, to Holdings to the extent necessary to permit Holdings to discharge its tax liabilities in an amount not to exceed the amount that would be necessary to discharge the tax liabilities of Company and its Subsidiaries had Company filed a consolidated tax return solely for Company and its Subsidiaries, so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose;
(iii) so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
(i) in an aggregate amount not to exceed $2,000,000 in any Fiscal Year, or $5,000,000 during the term of this Agreement, to Holdings to repurchase shares of its capital stock Holdings Common Stock (or of any corporate parent (together with options or warrants in respect of any thereofto acquire Holdings Common Stock) held by present and former officers, directors and from employees of Borrower Company, so long as such repurchase is pursuant to, and in accordance with Holdings applies the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to Payment for such purpose; provided that the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower made pursuant to this clause (viii) during and not yet applied by Holdings for the period commencing on the Closing Date and ending on the Declaration Date, does purpose set forth in this clause (iii) shall not exceed 50% $250,000 at any time; and
(iv) in an aggregate amount not to exceed in any Fiscal Year the lesser of cumulative (I) Consolidated Net Income Excess Cash Flow for such Fiscal Year minus prepayments required pursuant to subsection 2.4B(iii)(e) in respect of Borrower Consolidated Excess Cash Flow for such Fiscal Year and its Subsidiaries for the period commencing on the Closing Date and ending on the last day (II) $20,000,000; provided that Restricted Junior Payments made pursuant to this clause (iv) shall be only of the Fiscal Quarter most recently endedtype referred to in clause (iv) of the definition herein of Restricted Junior Payment.
Appears in 1 contract
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would Payment except the following shall be caused thereby, Borrower maypermitted:
(ia) repurchase shares of its capital stock or of any corporate parent [Reserved];
(together with options or warrants b) Company may make regularly scheduled payments (but not voluntary prepayments) in respect of any thereof(i) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and the Existing Subordinated Notes in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions contained in, the Existing Subordinated Note Indenture and (ii) any repurchase or shareholder agreementsrepayment of the Existing Subordinated Notes with the proceeds of any refinancing of the Existing Subordinated Notes permitted under Section 6.1(c);
(c) So long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Company may make regularly scheduled payments of interest on any Take Out Securities; provided that (i) the aggregate amount of any such interest payments shall not exceed $10,000,000 in any Fiscal Year and (ii) repurchaseat the time of such Restricted Junior Payment, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that and after giving effect thereto thereto, Company shall be in pro forma compliance with the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, covenants set forth in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio Section 6.8 as of the last day of the Fiscal Quarter most recently ended Fiscal Quarter after giving effect to such payments;
(d) So long as no Default or Event of Default shall have occurred and be continuing or shall be less than 4.00:1.00 caused thereby, Company may consummate the Tender Offer or effect the Redemption in accordance with the terms of the Existing Subordinated Note Indenture;
(e) Subsidiaries of Company may make Restricted Junior Payments by way of dividends to its shareholders proportionate to their respective holdings;
(f) Holdings may make regularly scheduled payments in respect of (i) Permitted Seller Notes in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the agreement pursuant to which such Permitted Seller Notes were issued or were otherwise subject, and (Yii) Earn-Out Obligations in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the documents related to the relevant Permitted Acquisition;
(g) Company and any of its Subsidiaries may issue Indebtedness pursuant to Section 6.1(p) and may make regularly scheduled payments in respect of such Indebtedness and Company and its Subsidiaries may make Restricted Junior Payments to make a Permitted Acquisition of a portion or all of the Capital Stock of a Permitted Partially-Owned Subsidiary; provided that (i) the aggregate amount of such Restricted Junior Payments do not exceed $750,000 in any Fiscal Year, and (ii) the aggregate principal amount of any such Indebtedness outstanding pursuant to Section 6.1(p) does not exceed at any time $2,500,000 in the aggregate;
(h) Company may make Restricted Junior Payments to Holdings to the extent required to enable Holdings (i) to make scheduled payments of principal and interest on the Permitted Seller Notes and (ii) to make payments on Earn-Out Obligations in accordance with the terms of, and only to the extent required by, the documents related to the relevant Permitted Acquisition, so long as Holdings applies the amount of any such Restricted Junior PaymentPayment for such purpose; provided, when added to that at the aggregate amount time of all such Restricted Junior Payments previously declared or (without duplication) paid by Borrower Payment pursuant to this clause (vh) during the period commencing on the Closing Date and ending on the Declaration Dateimmediately after giving effect thereto, does not exceed 50% no Event of cumulative Consolidated Net Income Default shall have occurred and be continuing under Section 8.1(a), Section 8.1(c) or Section 8.1(e);
(i) [Reserved];
(j) Holdings may repurchase shares of Borrower Capital Stock of Holdings held by officers and employees of Holdings and its Subsidiaries for upon the period commencing on the Closing Date and ending on the last day termination of the employment of such officers and employees; provided, however, that the amount of such repurchase shall not exceed in any Fiscal Quarter most recently endedYear the sum of (1) $1,500,000 plus (2) the unutilized portion of such $1,500,000 from the immediately preceding Fiscal Year;
(k) Company may make Restricted Junior Payments to Holdings to the extent required to enable Holdings to make the repurchases permitted pursuant to Section 6.5(j), so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose;
(l) [Reserved];
(m) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Company may make Restricted Junior Payments to Holdings, to the extent necessary to permit Holdings to pay reasonable general administrative costs and expenses and (ii) to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose;
(n) [Reserved];
(o) Company or any of its Subsidiaries may purchase any additional portion, or all, of the Capital Stock of any Permitted Partially-Owned Subsidiary in accordance with Section 6.9(h); and
(p) So long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Holdings may repurchase shares of Capital Stock of Holdings; provided, however, that the amount of such repurchase shall not exceed (1) $15,000,000 at any time if the Leverage Ratio at the time of such repurchase and after giving effect thereto is greater than or equal to 2.00:1.00 or (2) $75,000,000 at any time if the Leverage Ratio at the time of such repurchase and after giving effect thereto is less than 2.00:1.00.
Appears in 1 contract
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly Directly or indirectly, indirectly declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower mayexcept that:
(iA) repurchase Borrower may make payments and distributions to Holdings that are used by Holdings to pay federal and state income taxes then due and owing, franchise taxes and other similar licensing expenses incurred in the ordinary course of business; provided that Borrower’s aggregate contribution to taxes as a result of the filing of a consolidated or combined return by Holdings shall not be greater, nor the aggregate receipt of tax benefits less, than they would have been had Borrower and its Subsidiaries not filed a consolidated or combined return with Holdings;
(B) Subsidiaries of Borrower may make Restricted Junior Payments to Borrower;
(C) Borrower may make distributions to Holdings to permit Holdings to redeem (and Holdings may redeem) shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower shares) from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income employees of Borrower and its Subsidiaries upon the death or other termination of employment of such employees, provided all of the following conditions are satisfied:
(1) no Default or Event of Default shall have occurred and be continuing or would arise as a result of such distribution or payment;
(2) after giving effect to such distribution and payment, Obligors shall be in compliance on a pro forma basis with all financial covenants set forth in the Financial Covenants Rider (excluding Paragraph A thereof) recomputed for the twelve-month period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedrecent fiscal quarter for which Agent has received the monthly financial statements required to be delivered pursuant to paragraph (A) of the Reporting Rider;
(3) the aggregate amount of such distributions permitted in any fiscal year of the Borrower shall not exceed $500,000; and
(4) after giving effect to such distribution and payment and the making of any Revolving Loan to fund such distribution, Excess Availability is at least $10,000,000; and
(D) Borrower may pay the “earn-out” amount in accordance with the terms of the Shelter Acquisition Documents, provided that (1) no Event of Default shall have occurred and be continuing or would arise as a result of such payment, (2) after giving effect to such payment and the making of any Revolving Loan to fund such payment, Excess Availability is at least $20,000,000 in excess of the minimum Excess Availability required under clause (A) of the Financial Covenants Rider and (3) average daily Excess Availability for the 60-day period preceding the date of such payment (as mutually calculated by Borrower and Agent in accordance with this Agreement) exceeds the minimum Excess Availability required under clause (A) of the Financial Covenants Rider by at least $20,000,000 on a pro forma basis (after giving effect to such payment and the making of any Revolving Loan to fund such payment as if made on the first day of such period).
Appears in 1 contract
Samples: Loan and Security Agreement (Beacon Roofing Supply Inc)
Restricted Junior Payments. Borrower (i) Company may make payments on the Subordinated Notes, the New Subordinated Notes and in respect of any of the Additional Subordinated Indebtedness as required by the terms of the Subordinated Notes, New Subordinated Notes, or the instruments evidencing such Additional Subordinated Indebtedness, respectively, but subject, in each case to the subordination provisions contained therein; provided that (X) Company may -------- repurchase, or Company or any Subsidiary of Company (other than a License Co.) may purchase, in one or a series of transactions, Subordinated Notes and New Subordinated Notes; provided that (a) no Event of Default or -------- Potential Event of Default shall nothave occurred and be continuing at the time of such purchase or repurchase, and (b) immediately after giving effect to each such purchase or repurchase, Company is in compliance on a Pro Forma Basis with all covenants set forth in Section 6 and 7 of this Agreement and (Y) Company may redeem the Subordinated Notes on the maturity date thereof strictly in accordance with the terms of the Subordinated Note Documents; provided, that (a) no Event of Default or -------- Potential Event of Default shall not permit have occurred and be continuing at the time of such redemption and (b) immediately after giving effect to such redemption, Company is in compliance on a Pro Forma Basis with all covenants set forth in Sections 6 and 7 of this Agreement.
(ii) any Subsidiary of its Subsidiaries toCompany may pay dividends or make other distributions to Company with respect to Company's ownership interest in such Subsidiary; and
(iii) Company may pay dividends or make other distributions with respect to the New Preferred Stock, directly but only so long as, after giving effect to such dividend or indirectlydistribution, declareno Potential Event of Default or Event of Default shall have occurred and be continuing; provided, orderthat -------- Company may repurchase, payin one or a series of transactions, make or set apart any sum for any Restricted Junior Payment; PROVIDED that New Preferred Stock so long as (a) no Event of Default or Potential Event of Default has shall have occurred and be continuing at the time of such repurchase, (b) immediately after giving effect to each such purchase or repurchase, Company is continuing or would be caused therebyin compliance on a Pro Forma Basis with all covenants set forth in Section 6 and 7 of this Agreement, Borrower may:
and (ic) the fair market value at the time of such repurchase shares of its capital stock or the Company Common Stock into which such New Preferred Stock is 110 convertible is at least 125% of the consideration for such repurchase, and Company may cancel any corporate parent New Preferred Stock held by it. It is understood and agreed that, except as set forth in the proviso to clause (together with options or warrants iii) of this subsection, Company shall not make any Restricted Junior Payment in respect of any thereof) held by present and former officersredemption, directors and employees purchase or other acquisition of Borrower so long any shares of any class of New Preferred Stock, including, without limitation, in connection with any ``CHANGE OF CONTROL'' (as such repurchase term is pursuant to, and defined in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(iidocumentation governing each such class of New Preferred Stock) repurchase, which would otherwise entitle the holders of any shares of New Preferred Stock to require Company to redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem purchase or otherwise acquire such shares, other than through the issuance by Company of shares of common stock any Non-Restricted Capital Stock to such holders in payment of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedNew Preferred Stock.
Appears in 1 contract
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for Make any Restricted Junior Payment, except (a) payments made pursuant to “first day” orders in the US Cases, the Canadian Initial Order, the Canadian Amended Order or other orders entered by the Bankruptcy Courts or action approved by the monitor pursuant to the Canadian Amended Order with notice to the Agent and (y) payments in respect of Adequate Protection Claims to the extent authorized by the Bankruptcy Court; PROVIDED provided that so long as no Event payments of Default or Potential Event regularly scheduled interest shall be permitted (i) with respect to post-petition Indebtedness and (ii) with respect to pre-petition Indebtedness to the extent authorized by an order of Default has occurred the Bankruptcy Courts; provided further, that Indebtedness secured by a Lien permitted under Section 5.01 on an asset that is disposed of pursuant to a transaction permitted under Section 5.04 may be prepaid with the proceeds of such disposition. Notwithstanding the foregoing, the following, to the extent not covered by an existing order of the US and is continuing or would Canadian Courts, shall be caused thereby, Borrower maypermitted:
(i1) repurchase shares any payment solely to reimburse ABH or its Affiliates for actual out-of-pocket expenses, not including fees paid directly or indirectly to ABH or its Affiliates, for the provision of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held services by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with unaffiliated third parties to the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreementsAbitibi Entities;
(ii2) repurchasepayments to, redeemor on behalf of, defease ABH solely to permit ABH to pay its reasonable accounting, legal and administrative expenses when due, in an aggregate amount in any Fiscal Year not to exceed 50% of the amount of such expenses incurred by ABH during such Fiscal Year; provided, that the amount of such payments permitted to be made during any Fiscal Year shall be increased by the amount of such expenses allocated by ABH to Bowater Incorporated, Bowater Newsprint South LLC or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debtany of their Subsidiaries for such Fiscal Year (such amount to be equal to 50% of the amount of such expenses incurred by ABH during such Fiscal Year), but only to the extent such Persons have failed to pay such amount; PROVIDED provided further, that the aggregate amount of such payments made in reliance on the preceding proviso after giving effect thereto the Available Amount Usage Effective Date shall not exceed the Available Amount;
sum of (iiix) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
$15,000,000 plus (ivy) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions the excess (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE"if any) of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Yi) the aggregate amount of any such Restricted Junior Payment, when added payments permitted to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower be made pursuant to this clause (v2) during in all previous Fiscal Years over (ii) the period commencing on aggregate amount of payments actually made pursuant to this clause (2) in all previous Fiscal Years (in each case without giving effect to the Closing Date and ending on provisos thereto); and
(3) for so long as any Abitibi Entity is a member of a group filing a consolidated or combined tax return with ABH (each an “Applicable Abitibi Entity”), payments to ABH in respect of the Declaration Date, does portion of ABH’s consolidated tax liability that is attributable to the Applicable Abitibi Entities (“Tax Payments”); provided that the Tax Payments shall not exceed 50% the taxes (including any penalties and interest) that would have been payable by the Abitibi Entities as a stand-alone group, taking into account any carryovers and carrybacks of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day tax attributes (such as net operating losses) of the Fiscal Quarter most recently endedAbitibi Entities from other taxable years.
Appears in 1 contract
Samples: Guaranty and Undertaking Agreement (AbitibiBowater Inc.)
Restricted Junior Payments. Borrower Company and Borrowers shall not, and shall not permit any of its and their Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that (A) Company may (i) make Holdings Ordinary Course Payments to the extent then due and payable, so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or Holdings applies the amount of any corporate parent such Restricted Junior Payment for such purpose; (together ii) make Restricted Junior Payments to Holdings for purchases of Common Stock of Holdings in connection with options or warrants the administration of Holdings’ employee benefits program and repurchases of employee shares, (iii) make regularly scheduled payments of interest in respect of any thereofSubordinated Indebtedness (including the Existing BSN Senior Subordinated Notes) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions contained in, the indenture or shareholder agreements;
(ii) repurchaseother agreement pursuant to which such Subordinated Indebtedness was issued, redeem, defease as such indenture or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debtother agreement may be amended from time to time to the extent not prohibited by subsection 6.12A; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchangeprovided, in whole or in partthe case of Company’s intercompany note to Holdings, any capital stock such payments of Borrower for shares of another class of capital stock of Borrower or rights interest shall be limited to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms non-cash payments on a basis consistent with past practices and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make, and Subsidiaries of Company may make, payments of intercompany indebtedness other than payments of Company’s intercompany Indebtedness to Holdings and (B) BSN and its Subsidiaries may use the proceeds of the French Tranche C3 Term Loans to make other BSN Change of Control Payments on the BSN Change of Control Payment Date and may redeem, repurchase or otherwise repay the BSN Senior Subordinated Notes with the proceeds of Indebtedness incurred under subsection 6.1(xv). The provisions of this subsection 6.5 shall not be breached by the payment of any Restricted Junior Payments; PROVIDED that on Payments to Holdings for the date purposes of Holdings making a dividend payment under clause (the "DECLARATION DATE"x) of Holdings Ordinary Course Payments definition within 60 days after the declaration of any the dividend in respect by Holdings, if at such date of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or declaration, the making of any other Restricted Junior Payment pursuant to the terms such payment would not have been in violation of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedsubsection.
Appears in 1 contract
Samples: Secured Credit Agreement (Owens Illinois Group Inc)
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its respective Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that (i) Company may make scheduled interest payments in respect of the Subordinated Notes in accordance with the terms of the Subordinated Note Indenture; (ii) Company may make scheduled interest and principal payments in respect of the Existing Seller Note and any Permitted Seller Notes permitted by subsection 7.1(viii) in accordance with the terms of the Existing Seller Note and such Permitted Seller Notes; (iii) so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
(i) Company may make payments in an aggregate amount not to exceed $1,000,000 in any Fiscal Year to the extent necessary to repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former Company Common Stock from officers, directors and or employees of Borrower so long as Company or any of its Subsidiaries following termination of employment of any such repurchase is pursuant toofficer, and director or employee by reason of death, disability, retirement or resignation or following other events customarily requiring or permitting such repurchase, in each case in accordance with the terms of, of customary terms of management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchaseagreements entered into with officers, redeem, defease directors or otherwise prepay employees of Company or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
Subsidiaries; (iv) redeem so long as no Event of Default or exchangePotential Event of Default shall have occurred and be continuing or shall be caused thereby, Company may repurchase Company Preferred Stock and make payments of accrued and unpaid dividends to the holders of Company Preferred Stock, provided that in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of no event may Company pay any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause on or repurchase Company Preferred Stock unless both (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (Xx) the Consolidated Leverage Ratio as of for the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the four-Fiscal Quarter period commencing on the Closing Date and ending on the Declaration Date, does not exceed 2.0:1.0 and (y) at least 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day initial aggregate principal amount of the Fiscal Quarter most recently endedTerm Loans has been repaid.
Appears in 1 contract
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED , provided that Company may make Restricted Junior Payments:
(i) to Holdings in an aggregate amount not to exceed Cdn. $1,000,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses,
(ii) to Holdings so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
(i) in an aggregate amount not to exceed Cdn.$2,000,000 in any Fiscal Year, or Cdn. $10,000,000 during the term of this Agreement, for distribution to Parent to the extent necessary to permit Parent to repurchase shares of its capital stock Parent Common Stock (or of any corporate parent (together with options or warrants in respect of any thereofto acquire Parent Common Stock) held by present and former officers, directors and from employees of Borrower so long Company pursuant to the terms of the existing employee stock ownership plans as such repurchase is pursuant toplans may be modified, and in accordance with the terms ofsupplemented or replaced as approved by Agents, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amountacting reasonably;
(iii) purchaseto Holdings so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or extent necessary to permit Holdings to discharge its tax liabilities, so long as Holdings applies the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior PaymentPayment for such purpose;
(iv) to purchase, when added to repurchase, repay or redeem the aggregate Senior Second Lien Secured Notes, the New Preferred Stock or, if at least 75% of the original principal amount of all Restricted Junior Payments previously declared the Senior Second Lien Secured Notes have been repaid, repurchased or (without duplication) paid by Borrower pursuant to this clause redeemed, the Holdings Preferred Stock, in each case with Net Securities Proceeds from a Qualifying IPO;
(v) during Company may purchase, repurchase, redeem or otherwise retire the period commencing on Series A Preferred Stock;
(vi) the Closing Date and ending on Series B Preferred Stock may be canceled in connection with the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day consummation of the Fiscal Quarter most recently endedtransactions under the Contribution Agreement, and the holders of the Series B Preferred Stock may receive common shares of the Company (as amalgamated) in exchange therefor;
(vii) Company may, on or after the Amalgamation, convert the Holdings Preferred Stock to common shares of the Company; and
(viii) by way of an exchange of shares or options to effect the Amalgamation.
Appears in 1 contract
Restricted Junior Payments. Borrower “No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that provided that, (i) LLC may make Restricted Junior Payments to Holdings, (ii) so long as no Default or Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
(i) Holdings may make Restricted Junior Payments in order for Holdings to repurchase or redeem outstanding shares of its capital stock or of any corporate parent Capital Stock (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire purchase Capital Stock) of Holdings owned by current or former employees, officers, or directors of Holdings or any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock Subsidiaries pursuant to the terms of this clause (v) any management equity subscription agreement, stock option agreement or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v)similar equity agreement, (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Paymentshareholders agreement or benefit plan, when added to provided that the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause subclause (vii) during the period commencing on the Closing Date and ending on the Declaration Date, does in any Fiscal Year shall not exceed 50% $50,000 plus the amount of cumulative any net cash proceeds received by Holdings in such Fiscal Year from the sale of Capital Stock of Holdings to any and all such employees, officers or directors that do not constitute an Excluded Issuance (it being understood, however, that unused amounts permitted to be paid pursuant to this proviso are Holdings and available to be carried over to subsequent Fiscal Years), and (iii) Holdings may make Restricted Junior Payments on or about the date hereof in order to consummate the purchase of certain stock of Holdings pursuant to the terms of that certain Stock Purchase Agreement, dated as of March 14, 2008, by and among the Sellers identified therein and Holdings.”
2.6. Section 6.8(c) of the Second Lien Credit Agreement is amended and restated in its entirety as follows: Maximum Consolidated Net Income of Borrower Capital Expenditures. Holdings shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal Year indicated below, in an aggregate amount for Holdings and its Subsidiaries in excess of the corresponding amount set forth below opposite such Fiscal Year; provided, such amount for any Fiscal Year shall be increased by an amount equal to 75% of the excess, if any, of such amount for the period commencing on previous Fiscal Year and not any year before the Closing Date and ending on previous Fiscal Year (as adjusted in accordance with this proviso) over the last day actual amount of Consolidated Capital Expenditures for such previous Fiscal Year: 2007 $ 3,000,000 2008 $ 3,000,000 2009 $ 3,500,000 2010 $ 4,000,000 2011 $ 4,500,000
2.7. Section 5.1(c) of the Fiscal Quarter most recently ended.Second Lien Credit Agreement is amended and restated in its entirety as follows:
Appears in 1 contract
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that (i) so long as no Event of Default or -------- Potential Event of Default shall have occurred and be continuing or shall be caused thereby, Company may make Restricted Junior Payments to 133 Holdings in an aggregate amount not to exceed $50,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses, (ii) Contico may make dividends and distributions to Company on account of the Contico Common Units and, so long as no Event of Default or Potential Event of Default has shall have occurred and be continuing or shall be caused thereby and so long as such payments are permitted under the Contico LLC Agreement as in effect on the date hereof, Contico may make Priority Return payments (as defined in the Contico LLC Agreement in effect on the date hereof) on account of the Contico Preferred Units in an aggregate amount not to exceed $1,350,000 in any Fiscal Year, (iii) Company may pay its obligations to K&C under the Management Agreement, as in effect on the Closing Date and unamended, in an aggregate amount not exceeding $500,000 in any Fiscal Year plus out-of- pocket expenses, so long as (x) no Event of Default shall have occurred and be continuing or is caused thereby or (y) an Event of Default (other than the type referred to in subsection 8.1) shall have occurred and is continuing or would is caused thereby and there shall be at least $15,000,000 of Revolving Borrowing Base availability after giving effect to such Restricted Junior Payment (and Company shall have delivered an Officer's Certificate to such effect) (it being understood that nothing in this subsection 7.5 shall prohibit the accrual of the management fees under the Management Agreement during the period that such fees or other amounts are prohibited from being paid pursuant to this subsection 7.5), and (iv) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may:
(i) repurchase shares of its capital stock Company may make Restricted Junior Payments to K&C or of K&C's Affiliates to the extent necessary to pay Company's obligations under any corporate parent (together with options or warrants in respect of any thereof) held Kohlberg Agreement entered into by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and Company after the Closing Date in accordance with the terms ofsubsection 7.12, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options as it may be amended from time to acquire any such shares time in accordance with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedsubsection 7.12.
Appears in 1 contract
Restricted Junior Payments. Borrower No Loan Party shall, nor shall not, and shall not it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED that , except (a) each Subsidiary may make Restricted Junior Payments of the types referred to in clauses (i), (ii) and (iii) of the definition of Restricted Junior Payments with respect to its Equity Interests to the Company and its other Subsidiaries (and, in the case of non-wholly owned Subsidiaries to the Company and any of its other Subsidiaries and to each other owner of Equity Interest of such Subsidiary based on their relative ownership interest of the relevant class), (b) the Company and each Subsidiary may make Restricted Junior Payments of the type referred to in clause (iv) of the definition thereof to the Company or one or more other Subsidiaries, subject only to the subordination provisions, if any, applicable thereto, (c) the Company may (x) pay Convertible Note Repayment Obligations then due and payable or (y) make any cash payment in respect of any purchase or repurchase through negotiated or open market transactions of any Convertible Notes (i) not more than 18 months prior to a Convertible Note Put Date in respect thereof or (ii) at any time on and after the date on which the Company has the option to call or otherwise redeem such Convertible Notes from the holder thereof, in each case so long as no Default or Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
(id) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant tono Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Company and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) each Subsidiary may repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares or retire for value any Equity Interests (or any restricted stock units) of common stock of Borrower the Company or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
Subsidiaries held by any current or former officer, director, consultant or employee of the Company or any of its Subsidiaries, or his or her estate, spouse, former spouse or family member (ivor pay principal or interest on any Indebtedness issued in connection with such repurchase, redemption or other acquisition) pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement, similar agreement or any other agreement pursuant to which such Equity Interests (or restricted stock units) were acquired or benefit plan of any kind and pay the amount of withholding Taxes owed by the recipient of such payment on account thereof, provided that only the Company may repurchase, redeem or exchange, in whole otherwise acquire or in part, retire for value any capital stock of Borrower for shares of another class of capital stock of Borrower Equity Interests (or rights to acquire shares of such other class of capital restricted stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.
Appears in 1 contract
Samples: Refinancing Amendment (Hologic Inc)
Restricted Junior Payments. Borrower shall not114
(i) make regularly scheduled payments of interest in respect of the Senior Notes or any Permitted Additional Indebtedness in accordance with the terms of, and shall not permit any only to the extent required by, and subject to the subordination provisions, if any, contained in, the Senior Notes Indenture, in the case of its Subsidiaries tothe Senior Notes, directly or indirectlythe indenture or other agreement pursuant to which such Permitted Additional Indebtedness was issued, declare, order, pay, make as such indenture or set apart any sum for any Restricted Junior Payment; PROVIDED that other agreement may be amended from time to time to the extent permitted under subsection 7.12;
(ii) so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused therebyresult therefrom, Borrower may:
(i) repurchase shares of its capital Company may purchase Company’s common stock or of any corporate parent (together with options common stock equity awards from present or warrants in respect of any thereof) held by present and former officers, directors and or employees (or their respective spouses, successors, executors, estates, administrators or heirs) of Borrower so long as Company or any Subsidiary of Company upon the death, disability, retirement or termination of employment of such repurchase is pursuant toofficer, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements director or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amountemployee;
(iii) purchasemake Restricted Junior Payments with respect to (x) employee or director stock options, redeem stock incentive plans or otherwise acquire shares restricted stock plans of common stock Company which are compensatory in nature and approved by the compensation committee of Borrower or warrants or options Company’s board of directors and (y) the purchase from time to acquire any such shares with proceeds received time by Borrower from substantially concurrent equity contributions or issuances of new shares Company of its common stockstock (for not more than market price) with the proceeds of the exercise by grantees under any equity-based incentive plan;
(iv) redeem make Restricted Junior Payments with respect to its Capital Stock in exchange for, or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts out of the shares of each class of capital stock involved in net cash proceeds of, a substantially concurrent sale of, such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; andCapital Stock;
(v) make any Restricted Junior Payment deemed to occur upon the exercise of any options or warrants to the extent that such Restricted Junior Payment represents all or a portion of the exercise price;
(vi) from and after the date on which the Energy Sale has been completed, and so long as no Potential Event of Default or Event of Default has occurred and is continuing at the time of such payment or immediately after giving effect thereto, make other Restricted Junior Payments; PROVIDED Payments (and/or make payments of dividends and distributions that on constitute Restricted Junior Payments within 90 days after the date (of declaration thereof, if at the "DECLARATION DATE") date of declaration of such payment, such payment would have complied with the provisions of this Agreement); provided that (A) after giving effect to any dividend such Restricted Junior Payment (or the declaration thereof, as applicable), (1) the Company and its Subsidiaries shall be in respect Pro Forma Compliance, (2) Liquidity shall not be less than $200,000,000 on a Pro Forma Basis and (3) the aggregate amount of Borrower's outstanding capital stock payments made or declared during any Fiscal Quarter pursuant to the terms of this clause (vvi) or the making of shall not exceed $15,000,000, and (B) if any other such Restricted Junior Payment pursuant is a Material Event or to the terms of this clause (v), (X) extent the Consolidated Net Leverage Ratio as of the last day end of the most recent Fiscal Quarter most recently ended for which a Compliance Certificate has been delivered was greater than 2.00 to 1.00, Company shall be less than 4.00:1.00 deliver to Administrative Agent an Officer’s Certificate (in form and substance satisfactory to Administrative Agent and including detailed calculations) certifying compliance with clauses (1) and (Y2) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all above;
(vii) make Restricted Junior Payments previously declared or (without duplication) paid by Borrower to minority shareholders of any Person that is acquired pursuant to this clause a Permitted Acquisition or similar Investment permitted by subsection 7.3 pursuant to appraisal or dissenters' rights or applicable law with respect to shares of such Person held by such shareholders; and
(vviii) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day make Restricted Junior Payments with proceeds of the Fiscal Quarter most recently endedSenior Notes as contemplated by the Senior Notes Indenture.
Appears in 1 contract
Samples: Credit Agreement (Ferroglobe PLC)
Restricted Junior Payments. Borrower No Loan Party shall, nor shall not, and shall not it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED , except that so long as no Event (a) the Borrower may make regularly scheduled payments of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants interest in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and Subordinated Indebtedness in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions contained in, the indenture or shareholder agreements;
other agreement pursuant to which such Subordinated Indebtedness was issued as such indenture or other agreement may be amended from time to time to the extent permitted under Section 6.14; (b) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Borrower may make Restricted Junior Payments (i) in an aggregate amount not to exceed $500,000 in any Fiscal Year, to the extent necessary to permit Holdings (or any Parent Company) to pay general administrative costs and expenses and (ii) repurchase, redeem, defease to the extent necessary to permit Holdings (or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto any Parent Company) to discharge the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares consolidated tax liabilities of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of Holdings and its common stock;
(iv) redeem or exchangeSubsidiaries, in whole each case so long as Holdings (or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account Parent Company) applies the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior PaymentPayment for such purpose; (c) so long as no Default or Event of Default shall have occurred and be continuing or be caused thereby, when added Holdings (or any Parent Company) may repurchase or retire for value Capital Stock of Holdings (or any Parent Company) held by any future, present or former employee, director, officer, manager or consultant (or any Controlled Investment Affiliate or Immediate Family Member thereof) of Holdings (or any Parent Company) or any Subsidiary upon the death, disability, retirement or termination of employment of any such Person or otherwise pursuant to any employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any future, present or former employee, director, officer, manager or consultant of Holdings (or any Parent Company) or any Subsidiary (x) in exchange for notes issued pursuant to Section 6.01(o), (y) in exchange for or with the aggregate amount proceeds of all Capital Stock of or Indebtedness issued by Holdings (or any direct or indirect parent thereof) or (z) in exchange for Cash and Cash Equivalents (and the Borrower may make Restricted Junior Payments previously declared to Holdings to make (or to make Restricted Junior Payments to permit any Parent Company to make)) in an amount not to exceed $15,000,000 in any Fiscal Year and $45,000,000 in the aggregate from the Closing Date to the date of determination; (d) the Borrower may make payments in respect of Management Fees not to exceed $2,500,000 in any fiscal year; (e) the Borrower and Holdings may pay (or make Restricted Junior Payments to permit the payment of) the Special Dividend; (f) the Borrower may replace or refinance the Senior Subordinated Notes with Indebtedness permitted by Section 6.01(p), (g) the Borrower may repay, repurchase or retire any Junior Financing with the proceeds of, or in exchange for, Qualified Capital Stock of the Borrower or any Parent Company or Indebtedness of any Parent Company so long as after giving effect to such repayment, repurchase or retirement no Event of Default shall have occurred and be continuing, (h) the Borrower may make Restricted Junior Payments (and Holdings may itself make Restricted Junior Payments with any such Restricted Junior Payments received by it from the Borrower); provided that at the time it is paid by the Borrower, (i) such Restricted Junior Payment is permitted pursuant to Section 4.07(a)(3) (which paragraph, for the avoidance of doubt, sets forth the builder basket) or Section 4.07(b)(11) of the Senior Subordinated Notes Indenture (as in effect on the date hereof and regardless of whether the obligations of the Borrower thereunder shall have been satisfied or discharged at or prior to such time the Senior Subordinated Notes Indenture shall be deemed to be in effect and binding on the Borrower for purposes of this Section 6.05) and (ii) the Senior Leverage Ratio, on a Pro Forma Basis after giving effect to such Restricted Junior Payment, is not greater than 4.0 to 1.0; and; and provided further that any Investment made in reliance on Section 6.07(u) will be counted as a Restricted Junior Payment for purposes of determining compliance with this Section 6.05(h), and (i) the Borrower may make Restricted Junior Payments (and Holdings may itself make Restricted Junior Payments with any such Restricted Junior Payments received by it from the Borrower) in an aggregate amount (without duplication) paid not to exceed $20,000,000 when combined with any Investments permitted by Borrower pursuant to this clause Section 6.07(v); provided that (vx) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day as of the Fiscal Quarter most recently endeddate of making such Restricted Junior Payment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and (y) the Senior Leverage Ratio, on a Pro Forma Basis after giving effect to such Restricted Junior Payment, is not greater than 4.0 to 1.0.
Appears in 1 contract
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that (i) Company may redeem the Existing Subordinated Notes with the proceeds of the Delayed Draw Term B Loans or to the extent that after giving effect to such redemption, the Available Amount Usage shall not exceed the Available Amount and (ii) so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower Company may:
(ia) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower Company so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iiib) purchase, redeem or otherwise acquire shares of common stock of Borrower Company or warrants or options to acquire any such shares with proceeds received by Borrower Company from substantially concurrent equity contributions or issuances of new shares of its common stock;
(ivc) redeem or exchange, in whole or in part, any capital stock of Borrower Company for shares of another class of capital stock of Borrower Company or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as 95 advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor;
(d) repurchase, redeem or otherwise pay or prepay or retire Subordinated Indebtedness; provided that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount; and
(ve) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of BorrowerCompany's outstanding capital stock pursuant to the terms of this clause (ve) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (ve), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 3.50:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower Company pursuant to this clause (ve) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower Company and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.
Appears in 1 contract
Restricted Junior Payments. Borrower Neither Company nor Holdings shall, nor shall not, and shall not either permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that (i) Company may on the Closing Date make a dividend to Holdings in the amount of the Recapitalization Payment, and Holdings may make a dividend in the amount of the Recapitalization Payment plus the net proceeds of the Holdings Notes to its shareholders, (ii) Company may make regularly scheduled payments of interest on the Second Lien Term Loans so long as no Event of Default described in subsection 8.1, 8.6 or 8.7 exists, and so long as the Administrative Agent has not delivered to the Borrower written notice of acceleration or the intent to commence any other remedy with respect to any other then-existing Event of Default, (iii) Company may prepay the Second Lien Term Loans with the Excess Cash Flow not required to be prepaid under subsection 2.4B(iii)(e) provided that the Applicable Consolidated Leverage Ratio is 3.00:1.00 or less, (iv) Company may make Restricted Junior Payments to Holdings (a) in an aggregate amount not to exceed $300,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses (other than Management Fees), and (b) to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose, (v) so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
Company may make Restricted Junior Payments to Holdings to the extent necessary to permit Holdings to repurchase Holdings Capital Stock (ior any options rights to acquire such Capital Stock) repurchase shares from any former or current employee of Holdings or its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower Subsidiaries so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all such repurchases shall not exceed $3,500,000 in any Fiscal Year and shall not exceed $7,500,000 in the aggregate, and Holdings may repurchase such Capital Stock using the proceeds of such Restricted Junior Payments previously declared by Company or, if such Restricted Payments are not made by Company in sufficient amounts to effect such repurchase, Holdings may issue promissory notes in exchange for such Capital Stock and may subsequently redeem such promissory notes, and (vi) so long as no Event of Default under any of subsection 8.1, 8.6 or (without duplication) paid by Borrower pursuant 8.7 shall have occurred and be continuing, Company may pay Management Fees with respect to this clause (v) during and as provided under the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day terms of the Fiscal Quarter most recently endedManagement Agreements.
Appears in 1 contract
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for Make any Restricted Junior Payment; PROVIDED that provided, however, that, so long as it is permitted by law, and so long as no Default or Event of Default shall have occurred and be continuing or Potential would result therefrom,
(a) Borrower may make distributions to former employees, officers, or directors of Borrower (or any spouses, ex-spouses, or estates of any of the foregoing) on account of redemptions of Stock of Group held by such Persons, provided, however, that the aggregate amount of such redemptions made by Borrower during the term of this Agreement plus the amount of Indebtedness outstanding under clause (l) of the definition of Permitted Indebtedness, does not exceed [***] in the aggregate,
(b) Borrower may make distributions to former employees, officers, or directors of Borrower (or any spouses, ex-spouses, or estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons owing to Borrower on account of repurchases of the Stock of Group held by such Persons; provided that such Indebtedness was incurred by such Persons solely to acquire Stock of Group, * Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
(c) Borrower may declare and pay dividends or make distributions to Group, the proceeds of which shall be used by Group solely to pay (i) (y) franchise taxes (other than income taxes) and other fees, taxes and expenses required to maintain its corporate existence or arising as a result of its ownership of Borrower, and (z) federal, state and local income taxes, to the extent such income taxes are attributable to the income of Borrower; provided that the amount of such payments in any fiscal year does not exceed the amount that Borrower would be required to pay in respect of federal, state and local taxes for such fiscal year were Borrower to pay such taxes separately from Group, and (ii) ordinary course operating and corporate overhead expenses and administrative and similar expenses related to its existence and ownership of Borrower, and
(d) Borrower may declare and pay dividends or make distributions to Group so long as (i) no Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
result therefrom and (i) repurchase shares Borrower has Liquidity of its capital stock $600,000,000, or of any corporate parent (together with options or warrants in respect of any thereof) held by present greater, before and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that immediately after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedthereto.
Appears in 1 contract
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would Payment except the following shall be caused thereby, Borrower maypermitted:
(ia) repurchase shares on the Closing Date, Company may make a Restricted Junior Payment to Holdings, in an amount equal to the net proceeds of the Term Loans, the Senior Subordinated Notes and the Revolving Loans made on the Closing Date, which in the case of Revolving Loans shall not exceed $1,000,000, the proceeds of which shall be used by Holdings to fund a portion of the Acquisition Financing Requirements, to repay the Existing Indebtedness of Holdings and its capital stock or of any corporate parent Subsidiaries and to pay related fees and expenses;
(together with options or warrants b) Company may make regularly scheduled payments (but not voluntary prepayments) in respect of any thereof(i) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and the Senior Subordinated Notes in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions contained in, the Senior Subordinated Note Indenture, (ii) any repurchase or shareholder agreementsrepayment of the Senior Subordinated Notes with the proceeds of any refinancing of the Senior Subordinated Notes permitted under Section 6.1(c) and (iii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, to the extent necessary to permit Company to discharge its obligations under the Senior Subordinated Note Registration Rights Agreement;
(c) Holdings may make regularly scheduled payments (but not voluntary prepayments) in respect of (i) the Holdings Senior Notes in accordance with the terms of, and only to the extent required by the Holdings Senior Note Indenture, (ii) repurchase, redeem, defease any repurchase or otherwise prepay or retire repayment of the Holdings Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto Notes with the Available Amount Usage shall not exceed proceeds of any refinancing of the Available AmountHoldings Senior Notes permitted under Section 6.1(c) and (iii) to the extent necessary to permit Holdings to discharge its obligations under the Stockholders Agreement and the Holdings Registration Rights Agreement;
(iiid) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) Company may make other Restricted Junior Payments; PROVIDED that on Payments to Holdings after the date fifth year anniversary of this Agreement, to the extent required to enable Holdings to make, regularly scheduled payments (the "DECLARATION DATE") of declaration of such payments not to include any dividend mandatory prepayments or redemptions), in respect of Borrower's outstanding capital stock pursuant the Holdings Senior Notes in accordance with the terms of, and only to the terms of this clause (v) or extent required by, the making of any other Restricted Junior Payment pursuant to Holdings Senior Note Indenture, so long as Holdings applies the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to Payment for such purpose; PROVIDED that at the aggregate amount time of all such Restricted Junior Payments previously declared or (without duplication) paid by Borrower Payment pursuant to this clause (vd) during and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing under Section 8.1(a), Section 8.1(c) or Section 8.1(e);
(e) Subsidiaries of Company may make Restricted Junior Payments by way of dividends to its shareholders proportionate to their respective holdings;
(f) Holdings may make regularly scheduled payments in respect of (i) Permitted Seller Notes in accordance with the period commencing terms of, and only to the extent required by, and subject to the subordination provisions contained in, the agreement pursuant to which such permitted Seller Notes were issued or were otherwise subject, and (ii) Earn-Out Obligations in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the documents related to the relevant Permitted Acquisition;
(g) Company and any of its Subsidiaries may issue Indebtedness pursuant to Section 6.1(p) and may make regularly scheduled payments in respect of such Indebtedness and Company and its Subsidiaries may make Restricted Junior Payments to repurchase the Capital Stock of a Subsidiary of Company owned, directly or indirectly, by veterinarians whose employment with the Company or any of its Subsidiaries has terminated for an reason; PROVIDED that (i) the aggregate amount of such Restricted Junior Payments do not exceed $750,000 in any Fiscal Year, and (ii) the aggregate principal amount of any such Indebtedness outstanding pursuant to Section 6.1(p) does not exceed at any time $2,500,000 in the aggregate;
(h) Company may make Restricted Junior Payments to Holdings to the extent required to enable Holdings (i) to make scheduled payments of principal and interest on the Permitted Seller Notes and (ii) to make payments on Earn-Out Obligations in accordance with the terms of, and only to the extent required by, the documents related to the relevant Permitted Acquisition, so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose; PROVIDED, that at the time of such Restricted Junior Payment pursuant to this clause (h) and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing under Section 8.1(a), Section 8.1(c) or Section 8.1(e);
(i) Holdings and/or Company and its Subsidiaries may pay Transaction Costs (and Company may make Restricted Junior Payments to Holdings to the extent required to enable Holdings to make such payments, so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose); PROVIDED that at the time of such Restricted Junior Payment pursuant to this clause (i) and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing under Sections 8.1(a), Section 8.1(c) or Section 8.1(e);
(j) Holdings may repurchase shares of Capital Stock of Holdings held by officers and employees of Holdings and its Subsidiaries upon the termination of the employment of such officers and employees; PROVIDED, HOWEVER, that the amount of such repurchase shall not exceed in any Fiscal Year the sum of (1) $1,500,000 plus (2) the unutilized portion of such $1,500,000 from the immediately preceding Fiscal Year;
(k) Company may make Restricted Junior Payments to Holdings to the extent required to enable Holdings to make the repurchases permitted pursuant to Section 6.5(j), so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose;
(l) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Holdings and/or Company may make payments to Leonard Green & Partners, L.P. (and Company may make Restricted Xxxxxx Xxxxxxts to Holdings to the extent required to enable Holdings to make such payments, so long as Holdings applies the amount of any such Restricted Junior Payments for such purpose) in an amount not to exceed in any Fiscal Year, the sum of the following: (1) $2,550,000 plus 1.6% of any additional equity investment made after the Closing Date by Sponsor, Co-Investors and ending on their Affiliates as annual management fees pursuant to the Declaration DateManagement Services Agreement, does not exceed 50% (2) any transaction fees to be paid to Leonard Green & Partners, L.P. in connection with the Acquisitiox, (0) xxx xxrmal and customary transaction fees to be paid to Leonard Green & Partners, L.P., from time to time, under such Maxxxxxxxx Xxxxices Agreement, and (4) the reimbursement of cumulative Consolidated Net Income the normal and customary out-of-pocket costs and expenses of Borrower Leonard Green & Partners, L.P. under such Management Services Agxxxxxxx; XXXXIDED, HOWEVER, such payments shall accrue during the pendency of any such Default or Event of Default and to the extent accrued shall be payable upon the cure, waiver or recision of such Default or Event of Default; PROVIDED, FURTHER, that the amount of such accrued payments in the Fiscal Year in which such accrued payments are actually made shall be in addition to the aggregate amount otherwise permitted to be paid in such Fiscal Year as set forth in clauses (1), (2), (3) and (4) of this Section 6.5(l); and
(m) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Company may make Restricted Junior Payments to Holdings, to the extent necessary to permit Holdings to pay reasonable general administrative costs and expenses and (ii) to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted Junior Payment for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedsuch purpose.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Veterinary Centers of America Inc)
Restricted Junior Payments. Borrower The Credit Parties shall not, and shall not permit any of its their respective Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that so Borrower (i) may make distributions to Holdings for tax obligations incurred by Holdings as a result of the pass-through of income to Holdings from the Credit Parties or as a result of the disposition by Holdings of any interest in a Credit Party (including without limitation, capital gains taxes); (ii) as long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused therebyresult therefrom, may make Cash distributions to Holdings for the repurchase by Holdings pursuant to open market transactions in compliance with all applicable laws of publicly owned Equity Securities of Holdings' in an aggregate cumulative amount since the Closing Date not to exceed $25,000,000; and (iii) as long as no Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom, Borrower may:
may make Cash advances (i) repurchase shares any such advance by Borrower or direct payment by Borrower or any of its capital stock or Subsidiaries in lieu of any corporate parent making such advance, being a "HOLDINGS ADVANCE") to Holdings in an amount sufficient to enable Holdings to pay reasonable and customary fees, costs and expenses incurred by Holdings (together with options or warrants and not payable to Affiliates of Holdings) in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance connection with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debtpublic issuance of Securities of Holdings; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
each such Holdings Advance is evidenced by a promissory note (iiiwhich may consist of one master note that covers all Holding Advances from time to time) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received payable on demand by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.
Appears in 1 contract
Restricted Junior Payments. Borrower The Credit Parties shall not, and shall not permit any of its their respective Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that so provided that:
(i) Borrower may make distributions to Holdings for tax obligations incurred by Holdings as a result of the capital structure of Borrower and its Subsidiaries or the operations or business of the Borrower and its Subsidiaries including the pass-through of income to Holdings from the Credit Parties or as a result of the disposition by Borrower of any interest in a Credit Party (including capital gains taxes);
(ii) as long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused therebyresult therefrom, Borrower may:
may make Cash advances (i) repurchase shares any such advance by Borrower or direct payment by Borrower or any of its capital stock or Subsidiaries in lieu of any corporate parent making such advance, being a “Holdings Advance”) to Holdings in an amount sufficient to enable Holdings to pay reasonable and customary fees, costs and expenses incurred by Holdings (together with options or warrants and not payable to Affiliates of Holdings) in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance connection with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
public issuance of Securities of Holdings (iiprovided that each such Holdings Advance is evidenced by a promissory note (which may consist of one master note that covers all Holding Advances from time to time) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amountpayable on demand by Borrower);
(iii) purchase, redeem as long as no Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom and the Borrower is in compliance with each of the Financial Covenants set forth in subsection 7.6 based upon the most recently ended Fiscal Quarter for which financial statements are available (and Borrower shall have delivered to Administrative Agent a Compliance Certificate to such effect): Borrower may make Cash advances to Holdings in an amount sufficient to enable Holdings to repurchase and (except for holding the applicable repurchased public Securities as treasury stock) retire or otherwise acquire shares terminate up to an aggregate amount which, together with the aggregate amount of common stock Cash dividends permitted to be made pursuant to clause (v) below, does not exceed the applicable Available Restricted Payments Amount, of Borrower or warrants or options to acquire the public Securities of Holdings in any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stockFiscal Year;
(iv) redeem as long as no Event of Default or exchange, Potential Event of Default has occurred and is continuing or would result therefrom: Borrower may make Cash advances to Holdings in whole an amount sufficient to enable Holdings to repurchase and (except for holding the applicable repurchased public Securities as treasury stock) retire or otherwise terminate annually up to an aggregate of Five Hundred Thousand Dollars ($500,000) of the Securities of Holdings held by current or former employees of any Credit Party to reimburse such current or former employees for tax liabilities incurred in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares connection with the vesting of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; andSecurities;
(v) as long as no Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom and the Borrower is in compliance with the Financial Covenants set forth in subsection 7.6 based upon the most recently ended Fiscal Quarter for which financial statements are available, Borrower may declare and pay Cash dividends to Holdings for the sole purpose of paying Cash dividends to Holdings’ stockholders, provided that such Cash dividends may not exceed in the aggregate, together with the aggregate amount of Cash advances permitted to be made pursuant to clause (iii) above, the applicable Available Restricted Payments Amount;
(vi) Borrower may (a) make other Restricted Junior Payments; PROVIDED that regularly scheduled fees, interest and principal payments on Second Lien Indebtedness, (b) make prepayments of the date (Second Lien Indebtedness solely with the "DECLARATION DATE") of declaration proceeds of any dividend in respect Cumulative Available Excess Cash Flow Amount at such time if, after giving thereto and the application of the proceeds therefrom, Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the ’s Consolidated Leverage Total Debt Ratio calculated on a Pro Forma Basis as of the last day of the last Fiscal Quarter most recently ended shall for which financial statements are required to be less than 4.00:1.00 delivered hereunder would not exceed 3:50:1:00; and (Yc) consummate a Second Lien Permitted Refinancing if (x) no Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom and (y) the aggregate amount of any agent (or lender, as applicable) under such Restricted Junior Payment, when added refinanced Second Lien Indebtedness shall have executed and delivered documentation satisfactory to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower Administrative Agent pursuant to this clause which such agent or lender, as applicable, has confirmed that it is bound by the terms of the Intercreditor Agreement; and
(vvii) during so long as no Event of Default has occurred under Section 8.1, 8.6 or 8.7, Borrower may (a) make regularly scheduled interest (at the period commencing non-default rate) and principal payments on the Closing Date Permitted Seller Notes and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day (b) make prepayments of the Fiscal Quarter most recently endedPermitted Seller Notes, in each case to the extent not prohibited by the subordination provisions thereof.
Appears in 1 contract
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for Make any Restricted Junior Payment; PROVIDED that provided, that, so long as it is permitted by law, and so long as no Default or Event of Default or Potential Event of Default has shall have occurred and is be continuing or would result therefrom,
(a) Parent may make distributions to former employees, officers, or directors of Parent (or any spouses, ex-spouses, or estates of any of the foregoing) on account of redemptions of Stock of Parent held by such Persons, provided, that, the aggregate amount of such redemptions made by Parent during the term of this Agreement plus the amount of Indebtedness outstanding under clause (l) of the definition of Permitted Indebtedness, does not exceed $1,000,000 in the aggregate,
(b) Parent may make distributions to former employees, officers, or directors of Parent (or any spouses, ex-spouses, or estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons owing to Parent on account of repurchases of the Stock of Parent held by such Persons; provided, that, such Indebtedness was incurred by such Persons solely to acquire Stock of Parent,
(c) any Borrower or Guarantor (other than Parent) may pay cash dividends to its direct parent that is a Loan Party; provided, that, each of the following conditions is satisfied, (i) such dividends shall be caused therebypaid with funds legally available therefore and (ii) such dividends shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower may:or Guarantor is a party or by which such Borrower or Guarantor or its or their property are bound, and
(d) any Borrower or Guarantor may make any other Restricted Junior Payments, provided, that,
(i) repurchase shares as of its capital stock or the date of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant topayment, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto thereto, either: (A) (1) the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts daily average of the shares of each class of capital stock involved in such redemption or exchangeExcess Availability for the immediately preceding ninety (90) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
consecutive day period shall have been not less than fifteen percent (v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE"15%) of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or Maximum Revolver Amount and, on a pro forma basis using the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio Excess Availability as of the last day date of the Fiscal Quarter most recently ended recent calculation of the Borrowing Base immediately prior to any such payment, the Excess Availability shall be not less than 4.00:1.00 fifteen percent (15%) of the Maximum Revolver Amount and (Y2) on a pro forma basis, the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries Fixed Charge Coverage Ratio for the twelve (12) month period commencing on the Closing Date and ending on the last day of the Fiscal Quarter month prior to the date of such payment for which Agent has received financial statements shall be not less than 1.10 to 1.00, or (B) the daily average of the Excess Availability for the immediately preceding ninety (90) consecutive day period shall have been not less than twenty percent (20%) of the Maximum Revolver Amount and, on a pro forma basis, using the Excess Availability as of the date of the most recently endedrecent calculation of the Borrowing Base immediately prior to any such payment, the Excess Availability shall be not less than twenty percent (20%) of the Maximum Revolver Amount,
(ii) Agent has received reasonably satisfactory projections for the twelve (12) month period after the date of such payment showing, on a pro forma basis after giving effect to the payment, either (A) minimum Excess Availability at all times during such period of not less than fifteen percent (15%) of the Maximum Revolver Amount and that the Fixed Charge Coverage Ratio is at all times not less than 1.10 to 1.00 during such period, or (B) minimum Excess Availability at all times during such period of not less than twenty percent (20%) of the Maximum Revolver Amount, and
(iii) Agent shall have received, at least ten (10) Business Days prior to the anticipated date of the proposed payment, prior written notice of the proposed payment and such information with respect thereto as Agent may reasonably request (in each case with such information to include (i) parties to such payment, (ii) the proposed date and amount of the payment, and (iii) the purpose of such payment, Provided, that, notwithstanding the failure to comply with the conditions set forth in Section 6.9(d) above, Parent may repurchase its Stock for consideration in an aggregate amount for all such repurchases not to exceed $5,000,000, so long as all payments in respect of such repurchases shall be included as Fixed Charges, on a pro forma basis, in the calculation of the Fixed Charge Coverage Ratio (such that all such payments shall be deemed to have been made at the commencement of the applicable period) and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing.
Appears in 1 contract
Restricted Junior Payments. Borrower Neither Company nor any Guarantor Subsidiary shall, nor shall not, and shall not it permit any of its Restricted Subsidiaries to, directly or indirectly, declare, order, pay, declare or make or set apart any sum for any Restricted Junior Payment; PROVIDED that Payment except that: (a) so long as no Event of Default pursuant to Section 8.1(a) shall have occurred and be continuing, Company may reimburse Holding for the fees and reasonable costs and expenses paid or Potential payable by Holding related to any unsuccessful equity or debt offering of Holding or unsuccessful proposed Permitted Acquisition or Investment; (b) for so long as Company or any of its Subsidiaries are members of (or disregarded as entities separate from members of) a group filing a consolidated, combined, affiliated or unitary income tax return with Holding, Company may make Restricted Junior Payments, directly or indirectly, to Holding in amounts required for Holding to pay federal, foreign, state and local income Taxes (and franchise or other similar Taxes imposed in lieu of income Taxes) imposed on such entity to the extent such Taxes are directly attributable to Company and its Subsidiaries; provided, however, that the amount of such payments in respect of any tax year does not, in the aggregate, exceed the amount that Company and its Subsidiaries that are members of (or disregarded as entities separate from members of) such consolidated, combined, affiliated or unitary group would have been required to pay in respect of such Taxes in respect of such year if the Company and its Subsidiaries paid such Taxes directly on a separate company basis or as a stand-alone consolidated, combined, affiliated or unitary income (or similar) tax group (reduced by any such Taxes paid directly by Company or any Subsidiary); (c) Company may make Restricted Junior Payments to Holding in order to allow Holding to (i) make regularly scheduled payments of interest in respect of (A) the Convertible Debentures, the 2022 Senior Notes, the 2024 Senior Notes, the 2025 Senior Notes, the New Senior Notes and the Tax Exempt Debt and (B) Indebtedness of Holding incurred after the Amendment and Restatement Effective Date the proceeds of which are used to make a Holding Capital Contribution, and (ii) make mandatory prepayments or redemptions (including payment of premium) of, make payments in connection with the exercise by holders of conversion rights with respect to, or repay at maturity the Convertible Debentures or any Indebtedness referred to in clause (i)(B) above; provided that the amounts used to make such payments referred to in this Section 6.4(c)(ii) are paid from (x) the proceeds of Indebtedness incurred pursuant to Section 6.1(w) or 6.1(x) or Additional Term Loans or (y) any other source -150- 105376510 of proceeds to the extent that after giving effect to such Restricted Junior Payment, the aggregate amount of the undrawn Revolving Commitments then in effect shall exceed $125,000,000; (d) so long as no Event of Default has shall have occurred and is be continuing or would be caused thereby, Borrower may:
Company may make additional Restricted Junior Payments to Holding, the proceeds of which may be utilized by Holding to make additional Restricted Junior Payments or otherwise, in an aggregate amount not to exceed the sum of (i) repurchase shares $200,000,000 in any Fiscal Year (with any unused amounts accumulating on a cumulative basis since the Amendment and Restatement Effective Date to each subsequent year, but not to exceed $125,000,000 in the aggregate of its capital stock amounts so carried forward while this Agreement is in effect, after which no further amounts may be carried forward), (ii) the amount accrued pursuant to this Section 6.4(d) of the First Amended and Restated Credit Agreement from the Closing Date to the Amendment and Restatement Effective Date, a calculation of which as of the Amendment and Restatement Effective Date is set forth on Schedule 6.4(d), and (iii) the Available Amount at such time; (e) so long as no Event of Default shall have occurred and be continuing or of any corporate parent (together with options or warrants would be caused thereby, Company may make Restricted Junior Payments in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) relating to their acquisition of, or exercise of options relating to, Capital Stock of Holding; (f) Company may make Restricted Junior Payments within sixty (60) days after date of declaration of any such Restricted Junior Payment if such Restricted Junior Payment was permitted pursuant to this Section 6.4 on the date of declaration thereof; (g) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant tono Event of Default shall have occurred and be continuing or would be caused thereby, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) Company may make Restricted Junior Payments to repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares for value any Capital Stock of common stock of Borrower Holding or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire Company representing fractional shares of such Capital Stock in connection with a stock dividend, split or combination or any merger, consolidation, amalgamation or other class combination involving Holding or Company; (h) so long as no Event of capital stock; PROVIDED that such other class of capital stock contains terms Default shall have occurred and provisions (taken as a wholebe continuing or would be caused thereby, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) Company may make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration Payments to redeem, repurchase, retire or otherwise acquire, in each case for nominal value per right, of any dividend in respect rights granted to all holders of Borrower's outstanding capital stock Capital Stock of Holding or Company pursuant to any stockholders’ rights plan adopted for the purpose of protecting stockholders from unfair takeover tactics; (i) so long as no Event of Default shall have occurred and be continuing or would be caused thereby, Company may make Restricted Junior Payments to dissenting stockholders pursuant to applicable law in connection with any merger, consolidation or transfer of all or substantially all of Holding’s, Company’s and its Restricted Subsidiaries’ assets that is permitted under the terms of this clause Agreement; (vj) so long as no Event of Default shall have occurred and be continuing or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v)would be caused thereby, (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Company may make Restricted Junior Payments previously declared that constitute a refinancing, refunding, extension, defeasance, discharge, renewal or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% replacement of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.Indebtedness -151- 105376510
Appears in 1 contract
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that (i) so long as (a) no Event of Default or (b) Potential Event of Default under subsections 7.1 or 7.6, shall have occurred and be continuing, or result from such payment, (w) Company and its Subsidiaries may make scheduled payments of interest on the Subordinated Debentures and the New Subordinated Indebtedness in accordance with their terms from all available sources, (x) Company and its Subsidiaries may pay principal and interest on Subordinated Indebtedness other than the Subordinated Debentures and the New Subordinated Indebtedness, (y) Subsidiaries may pay dividends to their respective shareholders, and (z) Company and Subsidiaries may redeem their capital stock, (ii) so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would be caused therebyresult from such payment, Borrower may:
(i) repurchase shares of Company and its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present Subsidiaries may redeem the Subordinated Debentures and former officersthe New Subordinated Indebtedness, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, Company and its Subsidiaries may redeem or otherwise acquire shares outstanding HCI Exchangeable Stock by the issuance of Company common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
and pay accrued and unpaid dividends on outstanding HCI Exchangeable Stock and (iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares Company and its Subsidiaries may make Restricted Junior Payments if the proceeds of such other class payments are used to cure an Event of capital stock; PROVIDED that such other class Default or Potential Event of capital stock contains terms Default and provisions (taken as a whole, and taking into account the relative amounts no Event of the shares Default or Potential Event of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or Default will result from the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedpayment.
Appears in 1 contract
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for Make any Restricted Junior Payment; PROVIDED that , other than (a) so long as no Event it is permitted by law, and so long as Borrower is a “pass-through” tax entity for United States federal income tax purposes, Borrower may declare and pay Pass-Through Tax Liabilities, net of any prior year loss carry-forwards, (b) Restricted Junior Payments to Borrower’s Subsidiaries that are Guarantors, (c) unless a Default or Potential an Event of Default has occurred and or is continuing continuing, or would be caused therebyresult therefrom, Borrower may:
may repurchase its Stock that is owned by former officers, directors or employees (ior the estate thereof) repurchase shares of Borrower or its Subsidiaries in connection with their resignation, termination or severance of employment in an aggregate amount not to exceed $100,000 during any fiscal year, (d) unless a Default or an Event of Default has occurred or is continuing, or would result therefrom, Borrower may redeem, repurchase, retire or otherwise acquire any of its capital stock Stock upon or in connection with the exercise or vesting of any corporate parent (together with options or restricted Stock (granted pursuant to any option plan or incentive compensation plan of Borrower, if such Stock constitutes all or a portion of the DA-3283712 v10 1286309-00040 exercise price or is surrendered (or deemed surrendered) in connection with satisfying any income tax obligation incurred in connection with such exercise or vesting and so long as no payments are made in cash or other property in connection therewith, (e) unless a Default or an Event of Default has occurred or is continuing, or would result therefrom, Borrower may redeem, repurchase, retire or otherwise acquire any of its Stock upon the exercise of warrants (including the Warrants) described on Schedule 5.2(b) to the Information Certificate if such Stock constitutes all or a portion of the exercise price or is surrendered (or deemed surrendered) in respect connection with satisfying any income tax obligation incurred in connection with such exercise and so long as no payments are made in cash or other property in connection therewith, and (f) unless a Default or an Event of Default has occurred or is continuing, or would result therefrom, Borrower may make cash payments solely in lieu of the issuance of fractional shares in connection with the exercise of warrants (including the Warrants), Stock options, restricted Stock or other securities convertible into or exchangeable for Stock of Borrower; provided that any thereof) held by present and former such cash payment shall not be for the purpose of evading the limitations of this Section 7.9 to officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedphantom Stock.
Appears in 1 contract
Samples: Credit and Security Agreement (U.S. Well Services, LLC)
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:except
(ia) repurchase shares Company may make regularly scheduled payments of its capital stock or of any corporate parent (together with options or warrants interest in respect of the Senior Subordinated Notes or any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and other Subordinated Indebtedness in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions contained in, the Senior Subordinated Notes Indenture, in the case of the Senior Subordinated Notes, and the indenture or shareholder agreementsother agreement pursuant to which such Subordinated Indebtedness was issued, in the case of any other Subordinated Indebtedness;
(iib) repurchasedividends or distributions payable to Company or any Guarantor Subsidiary or to all holders (other than any Parent Company that is not a Guarantor) of 126 Capital Stock of a Subsidiary on a pro rata basis, redeemtaking into account the relative preferences, defease if any, of the various classes of equity interests in each Subsidiary; provided that any dividends or otherwise prepay distributions to any Parent Company pursuant to this clause shall only be allowed to the extent such Parent Company immediately contributes such dividend or retire Senior Subordinated Debt distribution as common equity to Company or Refinancing Sub Debt; PROVIDED the Subsidiary that after giving effect thereto made the Available Amount Usage shall not exceed the Available Amountdividend or distribution;
(iiic) purchaseany dividend, payment or distribution to occur as part of the Transactions on the Closing Date in connection with the amalgamation under the Merger Agreement;
(d) Company may make Restricted Junior Payments to or on behalf of any Parent Company in an amount sufficient to pay out-of-pocket legal, accounting and filing and other general corporate overhead costs of such Parent Company actually incurred by such Parent Company and franchise taxes and other fees required to maintain its existence, in any case in an aggregate amount not to exceed U.S.$2.0 million in any calendar year;
(e) so long as no Default or Event of Default exists, the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Company or any Guarantor Subsidiary, or payments by Company to any Parent Company to permit, and which are used by, any Parent Company to repurchase, redeem or otherwise acquire shares or retire for value any Capital Stock of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchangeParent Company, in whole each case, held by any current or in partformer officer, director, consultant or employee of Company or any capital stock of Borrower for shares of another class of capital stock of Borrower Guarantor Subsidiary (or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a wholepermitted transferees, and taking into account the relative amounts assigns, estates or heirs of the shares of each class of capital stock involved in such redemption or exchange) foregoing); provided that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Paymentprice paid for all Capital Stock repurchased, when added to the aggregate amount of all Restricted Junior Payments previously declared redeemed, acquired or (without duplication) paid by Borrower retired pursuant to this clause (ve), net of proceeds received by or contributed to Company and Guarantor Subsidiaries from sales or resales of any Capital Stock purchased pursuant to this clause (e) during the period commencing on the Closing Date and ending on the Declaration Datenet of repayment of loans related to such Capital Stock made by a Credit Party pursuant to Section 6.7(f) and repaid in connection with such repurchase, does redemption, acquisition or retirement, shall not exceed 50% U.S.$2.5 million in any calendar year, with unused amounts being carried over for availability in the following calendar year, but not in any calendar year thereafter, and with the amount expended in any calendar year first being deemed to come from the amount allocated to such calendar year before giving effect to any carryover;
(f) to the extent that Company or one or more of cumulative Consolidated Net Income its Subsidiaries are members of Borrower a consolidated, combined or similar income tax group of which a direct or indirect parent of Company is the common parent, Company and its Subsidiaries may make Restricted Junior Payments pursuant to a tax sharing agreement or otherwise to the extent necessary to pay, and which are used to pay, any income taxes of such tax group that are attributable to Company and/or its Subsidiaries (including, for the period commencing avoidance of doubt, any U.S. income taxes (net of applicable foreign tax credits) imposed on the Closing Date and ending on the last day a direct or indirect parent of Company pursuant to Section 951 of the Fiscal Quarter most recently endedInternal Revenue Code, as amended (or any comparable provision of any state or local law), that is attributable to the ownership of stock of a Subsidiary by Company or any direct or indirect parent of Company ("SECTION 951 TAXES")) and are not payable directly by Company and/or its Subsidiaries; provided that the amount of any such dividends or distributions (plus any 127 such taxes payable directly by Company and/or its Subsidiaries) shall not exceed the amount of such taxes that would have been payable directly by Company and/or its Subsidiaries had Company been the U.S. common parent of a separate tax group that included only Company and its Subsidiaries and assuming that all the stock of any Subsidiary that gives rise to Section 951 Taxes was owned by Company (and not partly by any direct or indirect parent of Company); and
(g) Company may prepay, defease, redeem, repurchase or otherwise acquire or retire for value any Subordinated Indebtedness with the proceeds received from any contribution to its common equity capital financed by the substantially concurrent issue and sale of Qualified Capital Stock by any Parent Company which is not required to be applied pursuant to Section 2.16(c).
Appears in 1 contract
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would Payment except the following shall be caused thereby, Borrower maypermitted:
(ia) repurchase shares of its capital stock or of any corporate parent [Reserved];
(together with options or warrants b) Company may make regularly scheduled payments (but not voluntary prepayments) in respect of any thereof(i) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and the Existing Subordinated Notes in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions contained in, the Existing Subordinated Note Indenture and (ii) any repurchase or shareholder agreementsrepayment of the Existing Subordinated Notes with the proceeds of any refinancing of the Existing Subordinated Notes permitted under Section 6.1(c);
(iic) repurchaseSo long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub DebtCompany may make regularly scheduled payments of interest on any Take Out Securities; PROVIDED that (i) the aggregate amount of any such interest payments shall not exceed $10,000,000 in any Fiscal Year and (ii) at the time of such Restricted Junior Payment, and after giving effect thereto thereto, Company shall be in pro forma compliance with the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, covenants set forth in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio Section 6.8 as of the last day of the Fiscal Quarter most recently ended Fiscal Quarter after giving effect to such payments;
(d) So long as no Default or Event of Default shall have occurred and be continuing or shall be less than 4.00:1.00 caused thereby, Company may consummate the Tender Offer or effect the Redemption in accordance with the terms of the Existing Subordinated Note Indenture;
(e) Subsidiaries of Company may make Restricted Junior Payments by way of dividends to its shareholders proportionate to their respective holdings;
(f) Holdings may make regularly scheduled payments in respect of (i) Permitted Seller Notes in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the agreement pursuant to which such Permitted Seller Notes were issued or were otherwise subject, and (Yii) Earn-Out Obligations in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the documents related to the relevant Permitted Acquisition;
(g) Company and any of its Subsidiaries may issue Indebtedness pursuant to Section 6.1(p) and may make regularly scheduled payments in respect of such Indebtedness and Company and its Subsidiaries may make Restricted Junior Payments to make a Permitted Acquisition of a portion or all of the Capital Stock of a Permitted Partially-Owned Subsidiary; provided that (i) the aggregate amount of such Restricted Junior Payments do not exceed $750,000 in any Fiscal Year, and (ii) the aggregate principal amount of any such Indebtedness outstanding pursuant to Section 6.1(p) does not exceed at any time $2,500,000 in the aggregate;
(h) Company may make Restricted Junior Payments to Holdings to the extent required to enable Holdings (i) to make scheduled payments of principal and interest on the Permitted Seller Notes and (ii) to make payments on Earn-Out Obligations in accordance with the terms of, and only to the extent required by, the documents related to the relevant Permitted Acquisition, so long as Holdings applies the amount of any such Restricted Junior PaymentPayment for such purpose; PROVIDED, when added to that at the aggregate amount time of all such Restricted Junior Payments previously declared or (without duplication) paid by Borrower Payment pursuant to this clause (vh) during the period commencing on the Closing Date and ending on the Declaration Dateimmediately after giving effect thereto, does not exceed 50% no Event of cumulative Consolidated Net Income Default shall have occurred and be continuing under Section 8.1(a), Section 8.1(c) or Section 8.1(e);
(i) [Reserved];
(j) Holdings may repurchase shares of Borrower Capital Stock of Holdings held by officers and employees of Holdings and its Subsidiaries for upon the period commencing on the Closing Date and ending on the last day termination of the employment of such officers and employees; PROVIDED, HOWEVER, that the amount of such repurchase shall not exceed in any Fiscal Quarter most recently endedYear the sum of (1) $1,500,000 PLUS (2) the unutilized portion of such $1,500,000 from the immediately preceding Fiscal Year;
(k) Company may make Restricted Junior Payments to Holdings to the extent required to enable Holdings to make the repurchases permitted pursuant to Section 6.5(j), so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose;
(l) [Reserved];
(m) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Company may make Restricted Junior Payments to Holdings, to the extent necessary to permit Holdings to pay reasonable general administrative costs and expenses and (ii) to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose;
(n) [Reserved];
(o) Company or any of its Subsidiaries may purchase any additional portion, or all, of the Capital Stock of any Permitted Partially-Owned Subsidiary in accordance with Section 6.9(h); and
(p) So long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Holdings may repurchase shares of Capital Stock of Holdings; PROVIDED, HOWEVER, that the amount of such repurchase shall not exceed (1) $15,000,000 at any time if the Leverage Ratio at the time of such repurchase and after giving effect thereto is greater than or equal to 2.00:1.00 or (2) $75,000,000 at any time if the Leverage Ratio at the time of such repurchase and after giving effect thereto is less than 2.00:1.00.
Appears in 1 contract
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Consolidated Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED except:
(i) Company may make Restricted Junior Payments to cancel or repurchase stock or stock options granted or to be granted to directors or employees of Company or any of its Consolidated Subsidiaries under the Xxxx-Xxxxxx Security Corporation Management Stock Option Plan, the 1993 Stock Incentive Plan or any other employee or director stock option, incentive, purchase, retirement, savings or similar plan or pursuant to any stock subscription agreements with respect to shares of Common Stock in an aggregate amount which does not exceed $5,000,000 in any calendar year and $20,000,000 in the aggregate;
(ii) Company may make Restricted Junior Payments to repurchase shares of Common Stock then outstanding and to declare and pay dividends on, and make other distributions with respect to, shares of its Common Stock; provided that so long -------- the aggregate amount of all such Junior Restricted Payments made since December 31, 1997 shall not exceed the sum of: (I) $15,000,000 plus, provided that the Company's Consolidated Leverage Ratio on a pro forma -------- basis after giving effect to such Junior Restricted Payments and to any Indebtedness incurred in connection therewith is less than 3.00:1.00, (II) the sum of (1) 25% of positive Consolidated Net Income accrued during the period beginning on January 1, 1998 and ending on the last day of the Company's fiscal quarter ending immediately prior to the date of such proposed Restricted Junior Payment (or, if such aggregate Consolidated Net Income shall be a loss, minus 100% of such loss) and (2) 50% of the aggregate net cash proceeds received by the Company from the issue or sale (other than to a Subsidiary) after December 31, 1997 of Common Stock of the Company, or of any options, warrants or other rights to purchase such Common Stock; provided further, that after giving effect to any Restricted -------- ------- Junior Payment permitted under this subsection 6.5(ii), the Company is in pro forma compliance with the financial covenants set forth in subsection --- ----- 6.6;
(iii) Company may make Restricted Junior Payments in respect of Company's obligations to pay interest on its Subordinated Indebtedness in accordance with the terms of, and only to the extent required by, the terms of such Subordinated Indebtedness, as such terms are in effect on the Closing Date; and
(iv) Company may redeem or repurchase all of its outstanding 9 1/8% Subordinated Notes in accordance with a notice of redemption dated June 3, 1998, plus pay a premium thereon of up to 104.6% of the principal amount thereof; and Company may redeem or repurchase all of its outstanding Senior Subordinated Notes at a redemption price or repurchase price which does not exceed the principal amount thereof plus a premium; provided, that after -------- giving effect to any such redemption or repurchase of the Senior Subordinated Notes, including any indebtedness incurred in connection with such redemption or repurchase, the Company is in pro forma compliance with --- ----- the financial covenants set forth in subsection 6.6; provided that immediately prior to and immediately after giving effect to any -------- Restricted Junior Payment permitted by this subsection 6.5, no Event of Default or Potential Event of Default has occurred exists or will exist. Company will not, and is continuing or would be caused thereby, Borrower may:
(i) repurchase shares will not permit any of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant Subsidiaries to, and in accordance with deposit any funds for the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares purpose of common stock of Borrower or warrants or options to acquire making any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant with a trustee, paying agent or registrar or other payment intermediary more than three (3) Business Days prior to the terms of this clause (v)date such payment is due, (X) unless required to do so by the Consolidated Leverage Ratio terms, as of the last day Effective Date, of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 applicable indenture. In addition, Company will not, and (Y) the aggregate amount will not permit any of its 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 Subsidiary to (a) pay dividends or make any other distribution on any of such Restricted Junior PaymentSubsidiary's capital stock owned by Company or any Subsidiary of Company, when added (b) subject to the aggregate amount of all Restricted Junior Payments previously declared subordination provisions, pay any indebtedness owed to Company or any other Subsidiary, (c) make loans or advances to Company or any other Subsidiary or (without duplicationd) paid by Borrower pursuant transfer any of its property or assets to this clause Company or any other Subsidiary, except as provided herein, in the 9 1/8% Subordinated Note Indenture, in the Senior Subordinated Note Indenture or in the Trade Receivables Facility (v) during the period commencing with respect to BPS Financial Services, Inc.), any restrictions existing under any other agreements as in effect on the Closing Date or any renewals or extensions thereof; provided that the terms and ending on conditions of any such renewals or -------- extensions are no less favorable to Lenders than the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedagreements being renewed or extended.
Appears in 1 contract
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its respective Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that (i) Company may make scheduled interest payments in respect of the Subordinated Notes in accordance with the terms of the Subordinated Note Indenture; (ii) Company may make scheduled interest and principal payments in respect of the Existing Seller Note and any Permitted Seller Notes permitted by subsection 7.1(vii) in accordance with the terms of the Existing Seller Note and such Permitted Seller Notes; (iii) so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
(i) Company may make payments in an aggregate amount not to exceed $2,500,000 in any Fiscal Year to the extent necessary to repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former Company Common Stock from officers, directors and or employees of Borrower so long as Company or any of its Subsidiaries following termination of employment of any such repurchase is pursuant toofficer, and director or employee by reason of death, disability, retirement or resignation or following other events customarily requiring or permitting such repurchase, in each case in accordance with the terms of, of customary terms of management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchaseagreements entered into with officers, redeem, defease directors or otherwise prepay employees of Company or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
Subsidiaries; (iv) redeem so long as no Event of Default or exchangePotential Event of Default shall have occurred and be continuing or shall be caused thereby, Company may repurchase Company Preferred Stock and make payments of accrued and unpaid dividends to the holders of Company Preferred Stock, provided that in whole no event may Company pay any dividend on or in part, any capital stock of Borrower repurchase Company Preferred Stock unless both (x) the Leverage Ratio for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms the most recently ended four-Fiscal Quarter period is less than 2.0:1.0 and provisions (taken as a whole, and taking into account the relative amounts y) at least 50% of the shares initial aggregate principal amount of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged thereforTerm Loans has been repaid; and
and (v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower Company and its Subsidiaries for may consummate the period commencing on transactions contemplated by the Closing Date and ending on the last day of the Fiscal Quarter most recently endedUnion Acquisition Documents.
Appears in 1 contract
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants Payment in respect of any thereofsuch Credit Party or Subsidiary, as applicable, except that (a) held by present and former officers, directors and employees Company may make regularly scheduled payments of Borrower so long as such repurchase is pursuant to, and interest in respect of the Senior Subordinated Notes in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions contained in, the Senior Subordinated Note Indenture; (b) Company may extend, renew, refinance or shareholder agreements;
replace Subordinated Indebtedness to the extent permitted under Section 6.1(c); (c) any Subsidiary may pay dividends or make other distributions with respect to any class of its issued and outstanding Capital Stock or intercompany Indebtedness permitted by clauses (i) through (iii) of Section 6.1(b); provided, any dividends and other distributions by a Subsidiary that is not Wholly-Owned (i) are paid in Cash on a pro rata basis among the holders of each applicable class of Capital Stock and (ii) repurchaseare not made to any Person other than Company or its Subsidiaries at any time when a Default or Event of Default shall have occurred and be continuing or shall be caused thereby; (d) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, redeemCompany may make Restricted Junior Payments to Holdings (i) in an aggregate amount not to exceed $1,000,000 in any Fiscal Year, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto to the Available Amount Usage shall not exceed extent necessary to permit Holdings to pay general administrative costs and expenses and to pay franchise taxes and other fees to maintain its corporate existence, (ii) to the Available Amount;
extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries and (iii) purchaseto the extent necessary to fund Restricted Junior Payments by Holdings in accordance with clause (e) below, redeem or otherwise acquire shares provided, in each of common stock cases (i), (ii) and (iii) Holdings promptly applies the amount of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower Restricted Junior Payment for such purpose; (e) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the following additional payments may be made to holders or purchasers of -114-
(i) Holdings may purchase its Capital Stock for Cash from substantially concurrent equity contributions present or issuances former officers and employees of new shares Holdings or any of its common stock;
Subsidiaries in accordance with the terms of the Employee Leverage Program, Stockholder Agreements and stock option plans upon the death, disability or termination of employment of such officer or employee, provided, the aggregate amount of such Restricted Junior Payment does not exceed $10,000,000 per Fiscal Year; (ivii) redeem any Subsidiary acquired in a Permitted Acquisition may make Cash payments to redeem, retire or exchangerepurchase Capital Stock in such Subsidiary held by a minority investor permitted under clause (iii) of the definition of "Permitted Acquisition," provided, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms case of this clause (vii), the aggregate amount of all such payments by Holdings and its Subsidiaries (exclusive of amounts permitted by Section 6.5(d)) or does not exceed $4,000,000 during any Fiscal Year and $12,000,000 from the making of any other Original Closing Date; and (iii) Holdings may make Restricted Junior Payment pursuant Payments to holders of its Capital Stock or otherwise with 50% of the terms portion of this clause (v)Consolidated Excess Cash Flow not required to be used to prepay Loans in accordance with Section 2.16(e) so long as the Leverage Ratio, (X) the Consolidated Leverage Ratio recomputed as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount fiscal quarter of any Company for which financial statements have been delivered pursuant to Section 5.1(a), on a pro forma basis after giving effect to such Restricted Junior Payment, when added Payments (disregarding any increase in Consolidated Adjusted EBITDA as of such last day that was attributable to the aggregate amount application of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant the proceeds of the exercise of a Cure Right with respect to this clause (v) any fiscal quarter during the four fiscal quarter period commencing ended on the Closing Date and ending on the Declaration Datesuch last day), does shall not exceed 50% 4.25:1.0, and Company shall have delivered to Administrative Agent an officer's certificate to such effect; (f) payments of cumulative Consolidated Net Income Landis Acquisition Financing Requirements as contemplated xx xxe Landis Merger Agreement; and (g) payments of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedKerr Acquisition Xxxxxcing Requirements as contemplated by txx Xerr Merger Agreement.
Appears in 1 contract
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED that Payment except that, (a) so long as no Default or Event of Default shall be caused thereby, Company may make Restricted Junior Payments to Parent to the extent necessary to permit Parent to pay reasonable general administrative costs and expenses and to discharge the consolidated tax liabilities of Parent and its Subsidiaries, in each case, so long as Parent applies the amount of any such Restricted Junior Payment for such purpose, (b) so long as no Default or Potential Event of Default is continuing or caused thereby, Company and Parent may make Restricted Junior Payments in an amount not to exceed $1,150,000 in any Fiscal Year pursuant to and in accordance with stock option plans, bonus plans or other benefit plans or arrangements for management or employees of any Credit Party and their Subsidiaries; provided, however, to the extent such amounts are not used, such amounts shall roll over to subsequent Fiscal Years and such rolled over amounts may be expended in addition to the foregoing annual limitation, (c) so long as no Default or Event of Default is continuing or caused thereby, Company may pay dividends to or on behalf of Parent to repurchase the Capital Stock of Parent owned by members of management who are no longer employed (and Parent may make such repurchases) so long as the aggregate amount of such repurchases in any Fiscal Year does not exceed $2,300,000; provided, however, to the extent such amounts are not used, such amounts shall roll over to subsequent Fiscal Years and such rolled over amounts may be expended in addition to the foregoing annual limitation and (d) so long as no Default or Event of Default has occurred and is continuing or would be caused therebyresult therefrom, Borrower may:
the Credit Parties may make repayment of intercompany Indebtedness to Foreign Subsidiaries (ito the extent that such intercompany Indebtedness was incurred by the Credit Parties following the Closing Date) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officersan amount such that, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto to any particular repayment of intercompany Indebtedness made after the Available Amount Usage Closing Date, the aggregate net amount repaid by the Credit Parties shall not at any time exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire $10,000,000 within any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedYear.
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (Dura Automotive Systems Inc)
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for Make any Restricted Junior Payment; PROVIDED that provided, however, that, so long as it is permitted by law, and so long as no Default or Event of Default or Potential Event of Default has shall have occurred and is be continuing or would be caused thereby, Borrower may:result therefrom,
(ia) repurchase shares Parent (or any Subsidiary thereof which is not wholly-owned, directly or indirectly by Parent as of its capital stock the Closing Date) may make distributions to former employees, officers, or directors of any Loan Party (or any spouses, ex-spouses, or estates of any of the foregoing) on account of redemptions of Stock of Parent (or of any corporate parent (together with options Subsidiary thereof which is not wholly-owned, directly or warrants in respect indirectly by Parent as of any thereofthe Closing Date) held by present and former officerssuch Persons, directors and employees provided, however, that the aggregate amount of Borrower so long such redemptions made by Parent (or any Subsidiary thereof which is not wholly-owned, directly or indirectly by Parent as such repurchase is pursuant toof the Closing Date), and in accordance with plus the terms ofamount of Indebtedness outstanding under clause (k) of the definition of Permitted Indebtedness, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall does not exceed the Available Amount;
$1,000,000 in any twelve-month period; provided, that, (iiix) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any Parent and such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchangeSubsidiaries may carry over and make in subsequent twelve-month periods, in whole or in partaddition to the amounts permitted for such prior twelve-month period, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of unutilized capacity under this clause (va) attributable to the immediately preceding twelve-month period and (y) such amount in any twelve-month period may be increased by an amount not to exceed the cash proceeds from the sale of Stock of Parent (other than Prohibited Preferred Stock) and, to the extent contributed to Parent as common equity capital, the cash proceeds from the sale of Stock of any of Parent’s direct or indirect parent companies, in each case to members of management, directors or consultants of Parent, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date to the extent the cash proceeds from the sale of such Stock have not otherwise been applied to the making of any other Restricted Junior Payment pursuant to the terms of payment permitted under this clause (va);
(b) Parent may make distributions to former employees, officers, or directors of any Loan Party (or any spouses, ex-spouses, or estates of any of the foregoing), (X) solely in the Consolidated Leverage Ratio as form of forgiveness of Indebtedness of such Persons owing to Parent on account of repurchases of the last day Stock of Parent held by such Persons; provided that such Indebtedness was incurred by such Persons solely to acquire Stock of Parent; and
(c) Each Subsidiary of Parent may make distributions and dividends to its parent entity; provided, that, if the Fiscal Quarter most recently ended shall be less than 4.00:1.00 parent entity of such Subsidiary is not a Loan Party, such distributions and (Y) the aggregate amount of any such Restricted Junior Payment, when added dividends are promptly in turn distributed and dividended to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endeda Loan Party.
Appears in 1 contract
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for Make any Restricted Junior Payment; PROVIDED that provided, however, that, so long as it is permitted by law, and so long as no Default or Event of Default shall have occurred and be continuing or Potential would result therefrom,
(a) Borrower may make distributions to former employees, officers, or directors of Borrower (or any spouses, ex-spouses, or estates of any of the foregoing) on account of redemptions of Equity Interest of Parent held by such Persons, provided, however, that the aggregate amount of such redemptions made by Borrower during the term of this Agreement plus the amount of unsecured Indebtedness of Borrower owing to former employees, officers, or directors (or any spouses, ex-spouses, or estates of any of the foregoing) incurred in connection with the repurchase by Borrower of the Equity Interest of Parent that has been issued to such Persons, does not exceed [***] in the aggregate,
(b) Borrower may make distributions to former employees, officers, or directors of Borrower (or any spouses, ex-spouses, or estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons owing to Borrower on account of repurchases of the Equity Interest of Parent held by such Persons; provided that such Indebtedness was incurred by such Persons solely to acquire Equity Interest of Parent,
(c) Borrower may declare and pay dividends or make distributions to Parent, the proceeds of which shall be used by Parent solely to pay (i) (y) franchise taxes (other than income taxes) and other fees, taxes and expenses required to maintain its corporate existence or arising as a result of its ownership of Borrower, and (z) federal, state and local income taxes, to the extent such income taxes are attributable to the income of Borrower; provided that the amount of such payments in any fiscal year does not exceed the amount that Borrower would be required to pay in respect of federal, state and local taxes for such fiscal year were Borrower to pay such taxes separately from Parent, and (ii) ordinary course operating and corporate overhead expenses and administrative and similar expenses related to its existence and ownership of Borrower, and
(d) Borrower may declare and pay dividends or make distributions to Parent so long as (i) no Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
result therefrom and (i) repurchase shares of its capital stock or of any corporate parent Borrower’s total unrestricted cash and cash equivalents and marketable securities (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and determined in accordance with the terms ofGAAP) is equal to $600,000,000, management and/or employee stock plansor greater, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that before and immediately after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedthereto.
Appears in 1 contract
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly Directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, or permit any of its Material Subsidiaries through any manner or means or through any other Person to directly or indirectly declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower mayPayment except:
(ia) repurchase Restricted Junior Payments made when the Consolidated Leverage Ratio, both before and after giving effect to such Restricted Junior Payment and any Debt incurred in connection therewith, is less than 2.0 to 1.0;
(b) Holdings may make Restricted Junior Payments to, purchase or redeem Equity Interests of Holdings (including related stock appreciation rights or similar securities) (A) held by then present or former directors, consultants, officers or employees of Holdings or any of its Subsidiaries or by any employee compensation and incentive arrangements upon such person’s death, disability, retirement or termination of employment or under the terms of any such employee compensation and incentive arrangements or any other agreement under which such shares of its capital stock or of any corporate parent related rights were issued or (together with options or warrants in respect of any thereofB) held by present and or former officers, directors and or employees of Borrower so long as Holdings or any of its Subsidiaries at any time in order to provide liquidity to such repurchase is pursuant toofficers in the ordinary course of business; provided that the aggregate amount of such purchases or redemptions under this clause (b) shall not exceed $100,000,000 per fiscal year (plus, the amount of net proceeds received by Holdings or its Subsidiaries during such fiscal year from (x) sales of Equity Interests of Holdings to directors, officers or employees of Holdings or any of its Subsidiaries in connection with employee compensation and incentive arrangements and (y) third-party insurers under key-man life insurance policies that were not already applied under this clause (b)) which, if not used in accordance with the terms ofany year, management and/or employee stock plans, stock subscription agreements or shareholder agreementsmay be carried forward to any subsequent fiscal year;
(iic) repurchaserepurchases of common stock of Holdings in open market transactions, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving pursuant to the existing stock repurchase program approved by the governing body of Holdings and in effect thereto on the Available Amount Usage shall Closing Date in an aggregate amount not to exceed the Available Amount$500,000,000;
(iiid) noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of, and any required tax withholdings in respect of, such options;
(e) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares Equity Interests issued by it with the proceeds received by Borrower from the substantially concurrent equity contributions or issuances issue of new shares of its common stock;
(iv) redeem stock or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged thereforcommon Equity Interests; and
(vf) make other Restricted Junior PaymentsPayments made, in an aggregate amount not to exceed $100,000,000; PROVIDED provided, that, notwithstanding anything to the contrary foregoing, Holdings may pay dividends that on were permitted under any provision of Section 7.07(a) through (f) above at the date (the "DECLARATION DATE") time of declaration thereof if, at the time of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v)such declaration, (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended no Default shall have occurred and then be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedcontinuing.
Appears in 1 contract
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior PaymentPayment except that
(a) Company may make regularly scheduled payments of interest in respect of the Senior Subordinated Notes in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in the Senior Subordinated Note Indenture;
(b) the Company may make (i) required payments of principal and interest in respect of the Indebtedness incurred under the Term Loan Credit Agreement and any refinancing thereof permitted thereunder and hereunder; PROVIDED that (ii) any repurchases of Term Loans to the extent permitted and in accordance with the terms of the Term Loan Credit Agreement and (iii) so long as there are no Loans outstanding hereunder, voluntary prepayments of principal in respect of the Indebtedness incurred under the Term Loan Credit Agreement and any refinancing thereof permitted thereunder and hereunder;
(c) so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants Company may make Restricted Junior Payments in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease redemption or otherwise prepay or retire repayment of the Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after Notes as follows: if the Leverage Ratio at the time of such Restricted Junior Payments (determined by reference to the most recent Compliance Certificate delivered pursuant to Section 5.1(c) calculating the Leverage Ratio and giving pro forma effect thereto to the Available Amount Usage respective Restricted Junior Payments) (x) is less than 2.50:1.00, the aggregate amount of such Restricted Junior Payments shall not exceed the Available Amount;amount that would be permitted to be repurchased, redeemed or repaid pursuant to the Senior Subordinated Note Indenture, as in effect on the Closing Date, at the time of such Restricted Junior Payments, (y) is greater than 2.50:1.00 but less than 4.00:1.00, then the aggregate amount of such Restricted Junior Payments shall not exceed $10,000,000 in such Fiscal Year and (z) is greater than or equal to 4.00:1.00, then Company shall not be permitted to make any Restricted Junior Payments pursuant to this Section 6.5(c); FIRST LIEN CREDIT AGREEMENT EXECUTION 77
(iiid) purchaseso long as no Event of Default shall have occurred and be continuing or shall be caused thereby, redeem or Company may make any other additional Restricted Junior Payments that are not otherwise acquire shares of common stock of Borrower or warrants or options permitted pursuant to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares this Section 6.5 as follows: if the Leverage Ratio at the time of such other class Restricted Junior Payments (determined by reference to the most recent Compliance Certificate delivered pursuant to Section 5.1(c) calculating the Leverage Ratio and giving pro forma effect to the respective Restricted Junior Payments) (x) is less than 2.50:1.00, then Company shall be permitted to make those Restricted Junior Payments that would be permitted under Section 4.07 of capital stockthe Senior Subordinated Note Indenture, as in effect on the Closing Date, at the time of such Restricted Junior Payments, (y) is greater than 2.50:1.00, but less than 4.00:1.00, then the aggregate amount of such Restricted Junior Payments shall not exceed $12,000,000 in any Fiscal Year; PROVIDED provided, that such other class of capital stock contains terms and provisions (taken as a wholeamount may be increased in any Fiscal Year by the amount not utilized in the previous Fiscal Year, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption (z) is greater than or exchange) that are at least as advantageous equal to Lenders as those contained in the capital stock redeemed or exchanged therefor4.00:1.00, then Company shall not be permitted to make any Restricted Junior Payments pursuant to this Section 6.5(d); and
(ve) the Company may make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant Payments to the terms of this clause (v) or extent necessary to pay the making of any other Unpaid Refinancing Amount, if any, provided such Restricted Junior Payment pursuant to the terms of this clause is made within forty-five (v), (X45) the Consolidated Leverage Ratio as Business Days of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.
Appears in 1 contract
Restricted Junior Payments. Borrower Neither Company nor Holdings shall, nor shall not, and shall not either permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that (i) Company and any Foreign Subsidiary of Holdings may make Restricted Junior Payments to Holdings in an aggregate amount not to exceed $300,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses (other than Management Fees), (ii) Company and any Foreign Subsidiary of Holdings may make Restricted Junior Payments to Holdings to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose, (iii) Company may make Restricted Junior Payments to Holdings for the purpose of funding Investment by Holdings in Foreign Subsidiaries of Holdings, so long as such Investment by Holdings is promptly made and is permitted by subsection 7.3, (iv) any Foreign Subsidiaries of Holdings may make Restricted Junior Payments to Holdings provided that the proceeds thereof are promptly contributed by Holdings to Company as common equity, (v) so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
Company may make Restricted Junior Payments to Holdings to the extent necessary to permit Holdings to repurchase Holdings Capital Stock (ior any options rights to acquire such Capital Stock) repurchase shares from any former or current employee of Holdings or its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower Subsidiaries so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all such repurchases shall not exceed $5,000,000 in any Fiscal Year and shall not exceed $10,000,000 in the aggregate, and Holdings may repurchase such Capital Stock using the proceeds of such Restricted Junior Payments previously declared by Company or, if such Restricted Junior Payments are not made by Company in sufficient amounts to effect such repurchase, Holdings may issue promissory notes in exchange for such Capital Stock and may subsequently redeem such promissory notes, and (vi) so long as no Event of Default or (without duplication) paid by Borrower Potential Event of Default shall have occurred and be continuing or shall be caused thereby and the Applicable Consolidated Leverage Ratio is 3.00:1.00 or less, Company may make Restricted Junior Payments to Holdings to the extent necessary to permit Holdings to make payments of Restricted Junior Payments from the portion of Consolidated Excess Cash Flow not required to be applied to prepayment of Loans pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedsubsection 2.4B(iii)(d).
Appears in 1 contract
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that (i) Company may make Restricted Junior Payments to Holdings (a) to the extent necessary to permit Holdings to (I) pay the franchise fees or similar Taxes and fees required to maintain its corporate existence, (II) discharge the consolidated (or a unitary or combined state and local) Tax liabilities of Holdings and its Subsidiaries and (III) pay Taxes which are not determined by reference to income, but which are imposed on Holdings as a result of Holdings’ direct or indirect ownership of the equity of the Company, in each case so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose, (b) in an aggregate amount not to exceed $5,000,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses and (c) so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
(i) in an aggregate amount not to exceed $2,000,000 in any Fiscal Year, with unused amounts being available in future Fiscal Years, to the extent necessary to permit Holdings to repurchase shares of its capital stock Capital Stock of Holdings (or of any corporate parent (together with options or warrants in respect to acquire Capital Stock of any thereofHoldings) held by present and former officers, directors and from employees of Borrower so long as such repurchase is Company (other than pursuant to, to a Stock Repurchase) and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease Company may make Restricted Junior Payments to Holdings to the extent necessary to permit one or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debtmore Stock Repurchases; PROVIDED provided that after giving effect thereto (a) the Available Amount Usage aggregate amount of such Stock Repurchases shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained $25,000,000 in the capital stock redeemed aggregate for all such Stock Repurchases on or exchanged thereforafter the Closing Date; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (Xb) the Consolidated Leverage Ratio as of at the last day of the immediately preceding Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of Quarter, after giving effect to any such Restricted Junior PaymentStock Repurchase and any other Stock Repurchases since the end of such Fiscal Quarter, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Datein each case, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending as though such Stock Repurchases had been made on the last day of such Fiscal Quarter, is less than 3.50:1:00; and (c) after giving effect to any such Stock Repurchase, the Fiscal Quarter most recently endedRevolving Loan Commitment then in effect would exceed the Total Utilization of Revolving Loan Commitments by not less than $25,000,000.
Appears in 1 contract
Restricted Junior Payments. Borrower Holdings and Company shall not, and shall not permit any of its their respective Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that (i) any -------- Subsidiary of Company may pay dividends to Company or a Subsidiary of Company; (ii) Company may make dividends to its partners necessary to consummate the Recapitalization Transactions; (iii) Holdings and Company may make any Restricted Junior Payments in accordance with the terms of, and only to the extent required by, the Recapitalization Agreement; (iv) Company may make regularly scheduled payments of principal and interest in respect of the Senior Notes in accordance with the terms thereof; (v) Company may make Restricted Junior Payments to Holdings to the extent required for Holdings to make, and Holdings may make, regularly scheduled payments of interest in respect of the Shareholder Subordinated Notes in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, such Shareholder Subordinated Notes, as applicable; (vi) Holdings and Company may make or make distribution to Holdings to make regularly scheduled principal and interest payments in respect of Permitted Seller Notes to the extent permitted under subsection 7.1(viii) in accordance with the terms of, and subject to the subordination provisions contained in, such Permitted Seller Notes; (vii) Holdings may pay regularly scheduled distributions on the Preferred Units and Qualified Preferred Units pursuant to the terms thereof solely through the issuance of additional shares of such units, or by an increase in the liquidation preference thereof; (viii) Company may exchange the Senior Notes as contemplated by the Senior Note Indenture, and Holdings may exchange the Senior Discount Debentures in accordance with the Senior Discount Indenture; (ix) Company may make Restricted Junior Payments to Holdings and the General Partner, and Holdings may make Restricted Junior Payments, (a) to the extent necessary to permit Holdings to pay reasonable accounting, legal, SEC related, and similar fees and expenses and fees, expenses and indemnities payments to directors or members of board of managers of Holdings or the General Partner and (b) to the partners of Holdings and the General Partner for Permitted Tax Distributions; (x) so long as no Potential Event of Default or Event of Default shall have occurred and be continuing, Company may make Restricted Junior Payments to Holdings and the General Partner, and Holdings and the General Partner may make Restricted Junior Payments, to permit the payment of the Xxxx Management Fees under the Xxxx Advisory Services Agreement; (xi) Company may make Restricted Junior Payments to Holdings and the General Partner to the extent required for Holdings and General Partner to make, and Holdings may make, Restricted Junior Payments in an aggregate amount not to exceed $1,500,000 in any Fiscal Year to the extent necessary to make repurchases of Securities (and options or warrants to purchase such Securities) of Holdings from employees (a) upon termination (including by reason of death, disability or retirement) of such employees or (b) pursuant to a contractual obligation of Holdings or any of its Subsidiaries; provided that, such amount for any Fiscal -------- Year shall be increased by an amount equal to the excess, if any, of such amount for the previous Fiscal Year (as adjusted in accordance with this proviso) over the actual amount expended for such previous Fiscal Year; provided further that, -------- ------- such amount shall be reduced by the aggregate amount of all principal and interest payments made on any Shareholder Subordinated Notes permitted under subsection 7.1(vii) in such Fiscal Year; provided further that, such amount for -------- ------- any Fiscal Year shall be increased by an amount equal to the proceeds of a substantially concurrent sale for cash of Securities of Holdings or the Company, (xiii) Holdings or the Company may make Restricted Junior Payments in connection with repurchases of equity Securities deemed to occur upon the exercise of stock options if such Securities represent a portion of the exercise price thereof; (xiii) in the event that any letter of intent or purchase agreement entered into pursuant to Section 7.7(xi) is terminated and the Company or any Subsidiary is entitled to a reimbursement of any xxxx xxxxxxx money deposit made by it in connection therewith, the Company may make a Restricted Junior Payment to Holdings and the General Partner, and Holdings may make a Restricted Junior Payment in an amount not to exceed the amount of such reimbursement payment so long as no Event of Default or Potential Event then exists; (xiv) Holdings may issue Common Units to the holders of Default has occurred Preferred Units upon conversion thereof; and is continuing or would (xvi) Holdings may acquire its equity Securities solely in exchange for other equity Securities permitted to be caused therebyissued hereunder; provided still further, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in partthat, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights Restricted -------- ----- ------- Junior Payments by Company to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of Holdings permitted under this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended subsection shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid applied by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries Holdings for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.purposes specified in this subsection. 121
Appears in 1 contract
Samples: Revolving Credit Agreement (Anthony Crane Holdings Capital Corp)
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED Payment except that so long as no Event of Default or Potential Event Default shall then exist and be continuing, (a) Company may make regularly scheduled payments of Default has occurred and is continuing or would be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants interest in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and Subordinated Indebtedness in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions contained in, the indenture or shareholder agreements;
other agreement pursuant to which such Subordinated Indebtedness was issued as such indenture or other agreement may be amended from time to time to the extent permitted under Section 6.14; (b) (i) upon receipt by Company of proceeds from the issuance of the Company IPO, so long as the pro forma Senior Leverage Ratio for the most recently ended twelve month period is not in excess of 2.25:1.00, Company may make voluntary redemptions and prepayments of principal, interest and any premium with respect to the Senior Subordinated Notes (the "Senior Subordinated Note Repayments") with the proceeds received by Company from the issuance of the Company IPO (net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses); and (ii) repurchase, redeem, defease or otherwise prepay or retire to the extent that following any Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchaseNote Repayments, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts portion of the shares Senior Subordinated Notes remains outstanding, then Company may make additional voluntary redemptions and prepayments of each class the remaining principal, interest any premium with respect to the remaining outstanding amount of capital stock involved Senior Subordinated Notes in any Fiscal Year in an aggregate amount not to exceed in such redemption or exchangeFiscal Year, (x) that are at least as advantageous to Lenders as those contained $3,000,000 in the capital stock redeemed event that Company's Leverage Ratio for the last four Fiscal Quarters most recently ended is greater than 3.00:1.00; (y) $10,000,000 in the event that Company's Leverage Ratio for the last four Fiscal Quarters most recently ended is less than or exchanged thereforequal to 3.00:1.00, but greater than 2.00:1.00; and
and (vz) make other Restricted Junior Payments; PROVIDED that on no limit if the date Company's Leverage Ratio for the last four Fiscal Quarters most recently ended is less than or equal to 2:00:1.00 (the "DECLARATION DATE") of declaration of any dividend such prepayments set forth in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (vii), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 "Senior Subordinated Note Prepayments Amount"); and (Yc) Company may repurchase stock and options from any stockholder (y) in exchange for Capital Stock of Company or (z) in exchange for Cash and Cash Equivalents in an amount not to exceed $5,000,000 in any Fiscal Year and $20,000,000 in the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on from the Closing Date and ending on to the Declaration Date, does not exceed 50% date of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endeddetermination.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Amscan Holdings Inc)
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED that , except (a) so long as no Default or Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, the Borrower may:
(i) repurchase shares may make regularly scheduled payments of its capital stock or of any corporate parent (together with options or warrants interest in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and Senior Unsecured Indebtedness in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements the indenture or shareholder agreements;
other agreement pursuant to which any such Indebtedness was issued, (b) the Borrower may make cash payments in connection with conversions pursuant to the terms of the Hologic Convertible Notes or other convertible Indebtedness issued as permitted by Section 6.1(n) so long as (i) no Default or Event of Default shall have occurred and be continuing or shall be caused thereby and (ii) repurchasethe Borrower shall have delivered to the Administrative Agent a compliance certificate signed by an Authorized Officer demonstrating compliance with the financial covenants hereunder and a Minimum Liquidity of not less than $100,000,000, redeemin each case, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto to the Available Amount Usage subject Restricted Junior Payment and reaffirming that the representations and warranties made hereunder are true and complete in all material respects as of such date, (c) so long as no Default or Event of Default shall not exceed have occurred and be continuing or shall be caused thereby, the Available Amount;
Borrower may make regularly scheduled payments of interest in respect of any Subordinated Indebtedness permitted hereby in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, (iiid) purchaseso long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Borrower may repurchase, redeem or otherwise acquire shares or retire for value any Equity Interests of the Borrower or any of its Subsidiaries held by any current or former officer, director, consultant or employee of the Borrower or any of its Subsidiaries, or his or her estate, spouse, former spouse, or family member (or pay principal or interest on any Indebtedness issued in connection with such repurchase, redemption or other acquisition) pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement or benefit plan of any kind, (e) the Borrower and its Subsidiaries may repurchase Equity Interests which repurchase is deemed to occur upon any “cashless” exercise of stock options, warrants or other convertible securities, (f) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Borrower and its Subsidiaries may perform their obligations to support the price per share of the Borrower common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock price protection agreements entered into with sellers under Prior Acquisitions and Permitted Acquisitions, (g) the Borrower may make payments pursuant to the terms of this clause Indebtedness incurred in connection with the settlement of Adverse Proceedings listed on Schedule 4.11, (vh) or the making of any other Restricted Junior Payment pursuant Equity Interests surrendered to the terms of this clause (v)Borrower or its Subsidiaries in connection with any indemnification or withholding obligation, (Xi) the Consolidated Leverage Ratio Borrower may make cash payments in the form of cash settlements with respect to the Spread Overlay Agreements in accordance with the terms thereof, and only to the extent required thereby, so long as the Borrower receives contemporaneously with or within ninety (90) days preceding such distribution aggregate cash payments in connection with such Spread Overlay Agreements of the last day of the Fiscal Quarter most recently ended shall be not less than 4.00:1.00 the amount of such distribution and (Yj) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing as set forth on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedSchedule 6.4 hereof.
Appears in 1 contract
Restricted Junior Payments. Borrower No Loan Party shall, nor shall not, and shall not it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED that , except (a) each Subsidiary may make Restricted Junior Payments of the types referred to in clauses (i), (ii) and (iii) of the definition of Restricted Junior Payments with respect to its Equity Interests to the Company and its other Subsidiaries (and, in the case of non-wholly owned Subsidiaries to the Company and any of its other Subsidiaries and to each other owner of Equity Interest of such Subsidiary based on their relative ownership interest of the relevant class), (b) the Company and each Subsidiary may make Restricted Junior Payments of the type referred to in clause (iv) of the definition thereof to the Company or one or more other Subsidiaries, subject only to the subordination provisions, if any, applicable thereto, (c) the Company may (x) pay Convertible Note Repayment Obligations then due and payable or (y) make any cash payment in respect of any purchase or repurchase through negotiated or open market transactions of any Convertible Notes (i) not more than 18 months prior to a Convertible Note Put Date in respect thereof or (ii) at any time on and after the date on which the Company has the option to call or otherwise redeem such Convertible Notes from the holder thereof, in each case so long as no Default or Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
(id) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Company and each Subsidiary may repurchase, redeem or otherwise acquire or retire for value any Equity Interests (or any restricted stock units) of the Company or any of its Subsidiaries held by any current or former officer, director, consultant or employee of the Company or any of its Subsidiaries, or his or her estate, spouse, former spouse or family member (or pay principal or interest on any Indebtedness issued in connection with such repurchase is repurchase, redemption or other acquisition) pursuant toto any equity subscription agreement, stock option agreement, shareholders’ agreement, similar agreement or any other agreement pursuant to which such Equity Interests (or restricted stock units) were acquired or benefit plan of any kind and pay the amount of withholding Taxes owed by the recipient of such payment on account thereof, provided that only the Company may repurchase, redeem or otherwise acquire or retire for value any Equity Interests (or restricted stock units) of the Company specified in this clause (d), (e) the Company or any Subsidiary may make cash payments in the form of cash settlements with respect to the Spread Overlay Agreements in accordance with the terms ofthereof, management and/or employee stock plansand only to the extent required thereby, stock subscription agreements so long as the Company receives contemporaneously with or shareholder agreements;
within ninety (90) days preceding such distribution aggregate cash payments in connection with such Spread Overlay Agreements of not less than the amount of such distribution, (f) as set forth on Schedule 7.04 hereof, (g) the Company or any Subsidiary may refinance any Junior Financing with the proceeds of the Permitted Refinancing thereof (including without limitation by (i) depositing such proceeds in the Notes Escrow Account pursuant to the Notes Escrow Arrangement or (ii) repurchasedefeasance and/or discharge of the applicable Junior Financing as permitted or contemplated under the definition of Permitted Refinancing), redeem(h) the Company or any Subsidiary may make payments or distributions to dissenting stockholders pursuant to applicable law, defease pursuant to or otherwise prepay in connection with a consolidation, merger or retire Senior Subordinated Debt disposition of assets that complies, if applicable, with the provisions of this Agreement, (i) so long as no Default or Refinancing Sub Debt; PROVIDED that after giving effect thereto Event of Default shall have occurred and be continuing, the Available Amount Usage shall not exceed the Available Amount;
(iii) Company or any Subsidiary may purchase, redeem or otherwise acquire shares its outstanding Equity Interests or any Indebtedness with the Net Equity Proceeds received from a substantially concurrent issuance of common new Equity Interests, (j) any Loan Party or any Subsidiary may make any Restricted Junior Payment on account of the repurchase of Equity Interests deemed to occur upon exercise of stock of Borrower or options, warrants or options similar rights or grant, vesting or lapse of restrictions on the grant of any other performance shares, restricted stock, restricted stock units or other equity awards to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire the extent that shares of such Equity Interests represent all or a portion of (i) the exercise or purchase price of such options, warrants or similar rights or other class equity awards and (ii) the amount of capital stock; PROVIDED that withholding Taxes owed by the recipient of such other class award in respect of capital stock contains terms such grant, exercise, vesting or lapse of restrictions covered by clause (i), (k) so long as no Default or Event of Default shall have occurred and provisions (taken as a wholebe continuing or shall be caused thereby, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption any Loan Party or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) any Subsidiary may make other Restricted Junior PaymentsPayments in an aggregate amount in any Fiscal Year not to exceed the sum of (i) $125,000,000 plus (ii) the Available Amount with respect to such Fiscal Year; PROVIDED provided that on such amount shall be unlimited if (1) the date Net Senior Secured Leverage Ratio is less than or equal to 3.504.00:1.00 and (the "DECLARATION DATE"2) of declaration of there is no continuing Default and (iii) (l) any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant made to the terms of this clause (v), (X) the Consolidated Leverage Ratio as effect or in furtherance of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedReorganization.
Appears in 1 contract
Samples: Refinancing Amendment (Hologic Inc)
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that provided that:
(i) Company may make scheduled payments of interest in respect of the Second Lien Notes in accordance with the terms of the Second Lien Credit Agreement and Intercreditor Agreement (but only to the extent required by the Second Lien Credit Agreement), and subject to the subordination provisions contained in the Intercreditor Agreement;
(ii) Company may make regularly scheduled payments of interest in respect of any Subordinated Indebtedness (other than Indebtedness incurred pursuant to the Second Lien Credit Agreement) in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued;
(iii) [Reserved];
(iv) Company may convert any Subordinated Indebtedness (including Indebtedness pursuant to the Second Lien Credit Agreement) to Capital Stock of Company, Holdings or any direct or indirect parent;
(v) Company may make Restricted Junior Payments to Holdings (a) so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
in an aggregate amount not to exceed $1,000,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay overhead and general administrative costs and expenses (iincluding, without limitation, customary salary, bonus and other benefits payable to directors, officers and employees of Holdings), (b) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, in an aggregate amount not to exceed $2,000,000 in any Fiscal Year, to the extent necessary to permit Holdings to repurchase shares of its capital stock Capital Stock (or of any corporate parent (together with options or warrants in respect to acquire Capital Stock) from any future, present or former director, officer, member of management, employee or consultant of Holdings or any of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any thereof) held by present and former officers, directors and employees of Borrower the foregoing); provided that the aggregate unused amounts in any Fiscal Year may be carried over to the next succeeding Fiscal Year so long as such repurchase is pursuant tothe total aggregate amount permitted in any Fiscal Year, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall to such carryover, does not exceed $4,000,000; (c) to the Available Amount;
(iii) purchase, redeem or otherwise acquire shares extent necessary to permit Holdings to discharge the consolidated tax liabilities of common stock of Borrower or warrants or options to acquire any such shares Holdings and each Subsidiary that files on a consolidated return basis with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchangeHoldings, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken each case so long as a whole, and taking into account Holdings applies the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior PaymentPayment for such purpose (or to make a Restricted Junior Payment to its direct or indirect parent to enable it to make such payment so long as the amount is applied for such purpose); provided, when added to that (A) the amount of such Restricted Junior Payment shall not exceed the aggregate amount that Holdings and each Subsidiary that files on a consolidated return basis with Holdings would be required to pay in respect of federal, state and local taxes were Holdings and each such Subsidiary to pay such taxes as stand-alone taxpayers, (B) all Restricted Junior Payments previously declared or (without duplication) paid by Borrower made to Holdings pursuant to this clause subsection (vv)(c) during must be used by Holdings for the period commencing purposes specified herein within 45 days of the receipt thereof, and (C) Holdings and each Subsidiary shall promptly provide any information requested by the Administrative Agent reasonably necessary for the Administrative Agent to verify the accuracy and timeliness of any Restricted Junior Payments made pursuant to this subsection (v)(c), (d) to the extent permitted pursuant to subsection 7.9(ii), (e) the proceeds of which shall be used by Holdings to pay customary indemnification claims made by directors, officers, members of management, employees or consultants of Holdings attributable to the ownership or operations of Company and its Subsidiaries; (f) the proceeds of which shall be used by Holdings to pay franchise or similar taxes and other similar out-of-pocket fees and expenses required to maintain Holdings’ corporate existence (or to make a Restricted Junior Payment to its direct or indirect parent to enable it to make such payment so long as the amount is applied for such purpose); (g) to finance any Investment permitted to be made pursuant to subsection 7.3; provided that (A) such Restricted Junior Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Capital Stock) to be contributed to Company or another Loan Party or (2) the merger (to the extent permitted in subsection 7.7) of the Person formed or acquired into Company or one or more other Loan Party in order to consummate such Investment; (h) the proceeds of which shall be used by Holdings to pay fees and expenses related to any unsuccessful equity or debt offering permitted by this Agreement; and (i) the proceeds of which shall be used to (or to make Restricted Junior Payments to Holdings’ direct or indirect parent to enable it to) make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of Holdings (or such parent) or its Subsidiaries;
(vi) each Subsidiary may make Restricted Junior Payments to Company and to any other Loan Party (and, in the case of a Restricted Junior Payment by a non-wholly owned Subsidiary that is not a Loan Party, to (a) Company or another Subsidiary and (b) each other owner of Capital Stock of such non-wholly owned Subsidiary based on their relative ownership interests);
(vii) to the Closing Date and ending on the Declaration Dateextent constituting Restricted Junior Payments, does not exceed 50% of cumulative Consolidated Net Income of Borrower Company and its Subsidiaries for the period commencing on the Closing Date and ending on the last day may enter into transactions expressly permitted by subsection 7.7 or 7.9;
(viii) Company or its Subsidiaries may make repurchases of Capital Stock deemed to occur upon exercise of stock options or warrants if such Capital Stock represents a portion of the Fiscal Quarter most recently endedexercise price of such options or warrants or payments of Taxes made by Company or its Subsidiaries in respect of options or warrants exercised or vested in connection therewith;
(ix) from and after a Qualifying IPO of Company, Company may make the Restricted Junior Payments permitted to be made by Holdings under this subsection 7.5; and
(x) Company and its Subsidiaries may declare and make dividend payments or other distributions payable solely in the Capital Stock of such Person.
Appears in 1 contract
Samples: Credit Agreement (Panolam Industries International Inc)
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that provided that, so long as no Event of Default has occurred and is continuing or would result therefrom, (i) Company and its Subsidiaries may make scheduled payments in respect of any Permitted Seller Paper, (ii) Company and its Subsidiaries may make (x) regularly scheduled payments of interest in respect of the Senior Subordinated Notes and any other Subordinated Indebtedness and (y) Restricted Junior Payments to Holdings to permit regularly scheduled payments of interest in respect of the Holdings Notes and the Holdings PIK Notes, in each case in accordance with the terms of, and only to the extent required by, and subject to the provisions contained in, the indenture or other agreements pursuant to which such Subordinated Indebtedness, Holdings Notes or Holdings PIK Notes were issued, in each case as such indenture or other agreements may be amended from time to time to the extent permitted under subsection 7.13, (iii) Company may make Restricted Junior Payments to Holdings to permit the payment of the Management Fees under the Management Services Agreement, (iv) Company may make Restricted Junior Payments to Holdings, (a) in an aggregate amount not to exceed $500,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses and (b) to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, (v) Company may make Restricted Junior Payments to Holdings to the extent required for Holdings to make, Restricted Junior Payments in an aggregate amount not to exceed $2,500,000 in any Fiscal Year to the extent necessary to make repurchases of capital stock (and options or warrants to purchase such capital stock) of Holdings from employees upon termination (including by reason of death, disability or retirement) of such employees, and (vi) so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
(i) repurchase shares Company may make Restricted Junior Payments of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with amounts to the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) extent required for Holdings to repurchase, redeem, defease or otherwise prepay or retire any Existing Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall Notes not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock tendered pursuant to the Debt Tender Offer on terms of this clause (vset forth in the Existing Senior Note Indenture or otherwise) or the making of no less favorable in any other Restricted Junior Payment pursuant material respect to Holdings, Company and Lenders than the terms of this clause (v)the Debt Tender Offer; and, (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of provided further, that any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant Company to Holdings permitted under this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries subsection shall be applied by Holdings for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.purposes specified in this subsection. 119
Appears in 1 contract
Samples: Credit Agreement (DMW Worldwide Inc)
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants Company may make regularly scheduled interest payments in respect of the Existing Senior Notes and any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and Additional Notes in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions, if any, contained in, the Existing Senior Note Indentures or shareholder agreementsany indenture or indentures pursuant to which any Additional Notes are issued;
(ii) repurchaseCompany may declare and pay regularly scheduled dividends in respect of the Preferred Stock, redeemprovided that (a) the Leverage Ratio is equal to or less than 5.0:1.0, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that and (b) Company shall be in compliance with the Minimum Fixed Charge Coverage Ratio covenant set forth in subsection 6.6B(ii) and each other applicable covenant under subsection 6.6 after giving pro forma effect thereto the Available Amount Usage shall not exceed the Available Amountto such dividend;
(iii) purchase, Company may repurchase or redeem or otherwise acquire shares outstanding Capital Stock of common stock of Borrower or warrants or options to acquire any such shares Company with the net proceeds received by Borrower Company from substantially concurrent equity contributions the issuance of its Capital Stock of the same class or issuances of new Capital Stock which is junior to the Capital Stock being repurchased or redeemed, and Company may make Cash payments to repurchase or 91 100 redeem fractional shares of its common stockCapital Stock in connection with such repurchase or redemption in an amount not to exceed $100,000 in any Fiscal Year;
(iv) redeem to the extent Company makes any issuance of Additional Notes, Company may use the net Cash proceeds from such Additional Notes to redeem, repurchase or exchange, in whole or in part, any capital stock defease Indebtedness of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms Company and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged thereforits Restricted Subsidiaries; and
(v) make other Company may repurchase Capital Stock of Company held by members of management of Company or any Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock Subsidiary pursuant to any management equity subscription agreement or stock option plan of Company or upon the terms death or termination of this clause (v) or the making employment of any other Restricted Junior Payment pursuant to the terms such member of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) management; provided that the aggregate amount purchase price paid for all such Capital Stock shall not exceed the sum of any such Restricted Junior Payment, when added to $2,000,000 plus the aggregate amount cash proceeds received by Company from the issuance of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on Management Shares after the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.
Appears in 1 contract
Restricted Junior Payments. Borrower No Loan Party shall, nor shall not, and shall not it permit any of its Restricted Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED , except the following:
(a) any Company may declare and pay dividends or make other distributions ratably to its equity holders (provided that, other than in respect of Restricted Junior Payments made with amounts received directly or indirectly from South African Subsidiaries, no Loan Party or any of its Subsidiaries may pay dividends pursuant to this Section 6.04(a) to any Person that so long as no Event is not a Loan Party);
(b) any Restricted Subsidiary of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower mayHoldings may make Restricted Junior Payments to Holdings to the extent necessary to permit Holdings to make Restricted Junior Payments to any Parent Entity:
(i) repurchase shares the proceeds of its capital stock which shall be used by such Parent Entity to pay Taxes of Holdings, any other Subsidiary of Holdings or any group that includes Holdings, any Borrower or any other Subsidiary of any corporate parent Borrower and that files Taxes on a consolidated, combined, affiliated, unitary or similar basis, in each case attributable to the taxable income of Holdings and its Subsidiaries, net of any payment already made by Holdings or its Subsidiaries in respect of such Taxes; provided that Restricted Junior Payments pursuant to this subclause (together with options i) shall not exceed the amount of Taxes that Holdings would have paid if Holdings and its Subsidiaries were a stand-alone taxpayer or warrants stand-alone tax group, reduced by any payment made by Holdings or its Subsidiaries; and provided further that Restricted Junior Payments under this subclause (i) in respect of any thereofTaxes attributable to the income of any Unrestricted Subsidiaries of Holdings may be made only to the extent that such Unrestricted Subsidiaries have made cash payments for such purpose to Holdings or any Restricted Subsidiary;
(ii) held the proceeds of which shall be used by present such Parent Entity to pay (1) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting, tax reporting and similar expenses payable to third parties), that are reasonable and customary and incurred in the ordinary course of business, (2) customary salary, bonus, severance and other benefits payable to current or former directors, officers, directors and members of management, managers, consultants, independent contractors or employees of Holdings or any Parent Entity to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of Holdings and the Restricted Subsidiaries, (3) fees and expenses (x) due and payable by any Borrower so long or any Restricted Subsidiary and (y) otherwise permitted to be paid by Holdings and the Restricted Subsidiaries under this Agreement and (4) payments that would otherwise be permitted to be paid directly by Holdings or the Restricted Subsidiaries pursuant to Section 6.11(f) or (h);
(iii) the proceeds of which shall be used by Holdings (or any Parent Entity) to pay franchise and similar Taxes, other fees and expenses, required to maintain its organizational existence and auditing fees and expenses;
(iv) the proceeds of which shall be used to pay customary salary, bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, consultants, independent contractors or employees of Holdings or any Parent Entity to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of Holdings and the Restricted Subsidiaries;
(v) the proceeds of which shall be used by any Parent Entity to finance any Investment that would be permitted to be made by Holdings or a Restricted Subsidiary pursuant to Section 6.06;
(vi) the proceeds of which shall be used by Holdings (or any Parent Entity) to pay (i) fees and expenses related to any successful or unsuccessful equity issuance or offering or debt issuance, incurrence or offering, disposition or acquisition, Investment or other transaction permitted by this Agreement and (ii) public company costs; and
(vii) the proceeds of which shall be used by Holdings (or any Parent Entity) to pay fees and expenses incurred in connection with an initial public offering; provided however that other than due to Requirements of Law prohibiting the payment by one or more Subsidiaries of their proportionate share of Holdings’ liabilities noted in this Section 6.04(b) (or if any such payment would render one or more Restricted Subsidiaries insolvent or reasonably likely to become insolvent), each Restricted Subsidiary of Holdings may not pay more than its proportionate share of Holdings’ liabilities noted in this Section 6.04(b));
(c) any Restricted Subsidiary of any Initial U.S. Borrower may make Restricted Junior Payments to the extent necessary to permit Tronox US Holdings Inc., any Initial U.S. Borrower or any other beneficial owner of such Restricted Subsidiary that is a member of an affiliated or consolidated group that includes the Restricted Subsidiary (as applicable) to (i) pay franchise Taxes and other Tax obligations or fees required in each case to maintain its corporate existence and (ii) pay Taxes which are due and payable as part of an affiliated or consolidated group that includes the Restricted Subsidiary or due to direct or indirect ownership of any interests in Restricted Subsidiaries that are not treated as corporations for applicable Tax purposes, in each case, to the extent such Taxes are attributable to such Restricted Subsidiary or any entity in which such Restricted Subsidiary holds a direct or indirect ownership interest;
(i) Holdings may make Restricted Junior Payments to holders of the common stock of Holdings or any Parent Entity in an amount equal to (A) $40,000,000 per annum plus (B) in any fiscal quarter, up to $0.25 per share for each such fiscal quarter (as such repurchase is pursuant toamount shall be appropriately adjusted for any stock, splits, stock dividends, reverse stock splits, stock consolidations and similar transactions provided that the amount permitted to be paid under this clause (d) in any fiscal year, or, in the case of clause (B), fiscal quarter may be increased by an amount equal to the difference (if positive) between the permitted amount in a preceding fiscal year or, in the case of clause (B), fiscal quarter and the amount actually used or applied by Holdings during such relevant period; and provided further the amount of any such Restricted Junior Payments shall constitute Consolidated Fixed Charges for purposes of computing the Consolidated Fixed Charge Coverage Ratio hereunder;
(e) Holdings or any Restricted Subsidiary may make (i) regularly scheduled payments of principal and interest and mandatory prepayments of principal in respect of any Indebtedness for borrowed money, in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements or shareholder agreementsthe agreement pursuant to which such Indebtedness was issued; and (ii) so long as the Payment Conditions are satisfied at the time of such payment, voluntary prepayments of principal and interest in respect of any Permitted Indebtedness;
(iif) repurchasenotwithstanding anything to the contrary contained herein, redeemHoldings may make Restricted Junior Payments, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto so long as the Available Amount Usage shall not exceed Payment Conditions are satisfied at the Available Amounttime of such Restricted Junior Payment;
(iiig) purchasethe distribution, redeem by dividend or otherwise acquire otherwise, of shares of common Equity Interests of, or Indebtedness owed to Holdings, the Borrowers or any Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, the primary assets of which are Cash Equivalents);
(h) Holdings or any Restricted Subsidiary may make Restricted Junior Payments, the proceeds of which are applied (A) on the Closing Date, solely to effect the consummation of the Transactions and (B) to satisfy any purchase price payment under the Cristal Purchase Agreement;
(i) the Borrower may make Restricted Junior Payments to any Parent Entity to enable such Parent Entity to pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition (or other similar Investment), in an aggregate amount (as to all of the Restricted Junior Payments made in reliance on this clause (i)) not to exceed $5,000,000 in any Fiscal Year;
(j) payments made by Holdings or any Restricted Subsidiary in respect of withholding or similar taxes payable upon exercise of Equity Interests by any future, present or former employee, director, officer, manager or consultant (or their respective controlled Affiliates or Permitted Transferees) and any repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of Borrower the exercise price of such options or warrants or options to acquire required withholding or similar taxes;
(k) redemptions in whole or in part of any such shares of its Equity Interests for another class of its Equity Interests or with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stockEquity Interests; PROVIDED provided that such other class of capital stock contains new Equity Interests contain terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to the Lenders in all respects material to their interests as those contained in the capital stock Equity Interests redeemed or exchanged therefor; andthereby;
(vl) repurchases of Equity Interests in any Parent Entity (or make other Restricted Junior Payments; PROVIDED that on Payments to allow repurchases of Equity Interest in any Parent Entity) deemed to occur upon exercise of stock options or warrants or other incentive interests if such Equity Interests represent a portion of the date exercise price of such stock options or warrants or other incentive interests;
(the "DECLARATION DATE"m) Permitted Refinancings of declaration Subordinated Indebtedness;
(n) payments as part of any dividend an applicable high yield discount obligation or AHYDO catch-up payment;
(o) prepayments, redemptions, purchases, defeasances and other payments in respect of Borrower's outstanding capital stock pursuant Subordinated Indebtedness (x) prior to the terms their scheduled maturity, in an aggregate principal amount (as to all of this clause such prepayments, redemptions, purchases, defeasances and other payments) not to exceed $10,000,000 in any Fiscal Year; provided that no Event of Default then exists or would result therefrom; and and (vy) or the making of owing by any Loan Party to any other Loan Party, in each case, other than any such prepayments, redemptions, purchases, defeasances and other payments or distributions that are prohibited by the subordination provisions in respect thereof;
(p) prepayments, redemptions, purchases, defeasances and other payments or distributions in respect of Subordinated Indebtedness owing (x) by any Holding Company to any other Holding Company and (y) by any Restricted Junior Payment pursuant Subsidiary to any Loan Party (other than to a Holding Company, unless such payment is made in connection with the terms consummation of this clause (vthe Cristal Acquisition), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less in each case other than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Paymentprepayments, when added to redemptions, purchases, defeasances and other payments or distributions that are prohibited by the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended.subordination provisions in respect thereof; and
Appears in 1 contract
Samples: Revolving Syndicated Facility Agreement (Tronox LTD)
Restricted Junior Payments. Parent and Borrower shall not, and shall not permit any of its their respective Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that (i) Borrower and Parent, as the case may be, may make Restricted Junior Payments (x) on the Closing Date, (1) to consummate the Refinancing and the Merger and (2) to pay an advisory fee to JPMorgan Partners in an aggregate amount not to exceed $5,000,000 and (y) on or before November 16, 2002, to consummate the Existing Preferred Stock Purchase, (ii) (x) Borrower may make regularly scheduled payments of interest in respect of any Senior Subordinated Notes in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the Senior Subordinated Note Indenture, as such indenture may be amended from time to time to the extent permitted under subsection 7.12B, (y) Parent may make regularly scheduled payments of interest in kind in respect of any Parent Junior Subordinated Notes in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the Parent Junior Subordinated Note Indenture, as such agreement may be amended from time to time to the extent permitted under subsection 7.12B, and (z) after the fifth anniversary of the Parent Junior Subordinated Notes Issue Date and, so long as no Event of Default or Potential Event of Default has shall have occurred and be continuing on the date such Restricted Junior Payment is continuing declared or to be made, nor would be caused therebyan Event of Default or Potential Event of Default result from the making of such Restricted Junior Payment, Borrower may:
(i1) repurchase shares Parent may make regularly scheduled payments of its capital stock or of any corporate parent (together with options or warrants interest in cash in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and Parent Junior Subordinated Notes in accordance with the terms of, management and/or employee stock plansand subject to the subordination provisions contained in, stock subscription agreements or shareholder agreements;
the Parent Junior Subordinated Note Indenture, as such agreement may be amended from time to time to the extent permitted under subsection 7.12B and (ii2) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) may make other Restricted Junior Payments; PROVIDED that on Payments to Parent in an amount necessary to permit Parent to make Restricted Junior Payments in accordance with the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this immediately preceding clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (vz)(1), (X) so long as Parent applies the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment for such purpose, (iii) Borrower may make Restricted Junior Payments to Parent (a) in an aggregate amount not to exceed $500,000 in any Fiscal Year, to the extent necessary to permit Parent to pay its overhead expenses and (b) in an amount necessary to permit Parent to discharge the consolidated tax liabilities of Parent and its Subsidiaries paid in cash, in each case so long as Parent applies the amount of any such Restricted Junior Payment for such purpose, (iv) Borrower may make Restricted Junior Payments to pay Additional Costs in accordance with the definition of Additional Costs, and (v) so long as (A) no Event of Default or Potential Event of Default shall have occurred and be continuing on the date such Restricted Junior Payment is declared or to be made, nor would an Event of Default or Potential Event of Default result from the making of such Restricted Junior Payment, when added (B) after giving effect to the making of such Restricted Junior Payment Borrower shall be in pro forma compliance with each of the covenants contained in subsection 7.6 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Junior Payment for which the relevant financial information has been delivered pursuant to clauses (ii) and (iii) of subsection 6.1, and (C) Borrower shall have delivered to Administrative Agent an Officer's Certificate in form and substance satisfactory to Administrative Agent (including a calculation of the compliance with the covenants contained in subsection 7.6) certifying as to the accuracy of the foregoing clauses (A) and (B) above, (1) Borrower may make Restricted Junior Payments to Parent to the extent necessary to permit Parent to purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Parent held by directors, officers or employees of Parent or Borrower or any of their respective Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued, in an aggregate amount not to exceed $2,500,000 in any Fiscal Year; provided that Borrower may carry forward to each succeeding Fiscal Year the aggregate amount of all Restricted Payments permitted (but not made) pursuant to this subsection 7.5(v)(1) in prior Fiscal Years, with up to a maximum amount of $7,000,000 over the term of this Agreement and (2) Borrower may make Restricted Junior Payments previously declared or in an aggregate amount not to exceed $2,000,000 in any Fiscal Year; provided that Borrower may carry forward to each succeeding Fiscal Year the aggregate amount of Restricted Payments permitted (without duplicationbut not made) paid by Borrower pursuant to this clause (vsubsection 7.5(v)(2) in prior Fiscal Years, with up to a maximum amount of $5,000,000 during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% term of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedthis Agreement.
Appears in 1 contract
Samples: Credit Agreement (Brand Services)
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED Payment (or enter into an agreement with respect to the foregoing) except that so long as no Event (a) Company and its Subsidiaries may make regularly scheduled payments of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants interest in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and Senior Subordinated Notes in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions contained in, the Senior Subordinated Note Indenture as such indenture may be amended from time to time to the extent permitted under SECTION 6.16; (b) so long as no Default or shareholder agreements;
Event of Default shall have occurred and be continuing or shall be caused thereby, Company may make Restricted Junior Payments to Holdings (i) in an aggregate amount not to exceed $1,000,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses, (ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto to the Available Amount Usage shall not exceed extent necessary to permit Holdings to discharge the Available Amount;
(iii) purchase, redeem or otherwise acquire shares consolidated tax liabilities of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of Holdings and its common stock;
(iv) redeem or exchangeSubsidiaries, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken each case so long as a whole, and taking into account Holdings applies the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior PaymentPayment for such purpose, when added (iii) in an aggregate amount required for Holdings to pay franchise taxes and other fees required to maintain its legal existence, and (iv) in an aggregate amount sufficient to pay reasonable and customary costs and expenses incident to a public offering of the Common Stock of Holdings to the aggregate amount of all extent that the proceeds therefrom are intended to be contributed to the Company and are applied in accordance with Section 2.14, (c) Holdings and Company may make Restricted Junior Payments previously declared with respect to the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Holdings or any Subsidiary of Holdings held by any employee of Holdings (without duplicationor any of its Subsidiaries') paid by Borrower pursuant to this clause (v) during any equity subscription agreement, stock option agreement or similar agreement; PROVIDED that the period commencing on the Closing Date and ending on the Declaration Dateaggregate price paid for all such repurchased, does redeemed, acquired or retired Equity Interests may not exceed 50% $2,500,000 in any twelve-month period, (d) repurchases of cumulative Consolidated Net Income Capital Stock deemed to occur upon the exercise of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day employee stock options if such Capital Stock is surrendered in lieu of the Fiscal Quarter most recently endedexercise price thereof, (e) Holdings and Company may make Restricted Junior Payments with respect to fees and expenses payable under the Management Agreement and (f) Holdings and Company may make Restricted Junior Payments contemplated in Schedule 1.1(a).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Carters Imagination Inc)
Restricted Junior Payments. Borrower (a) No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED Payment except that so long as no Default or Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
(i) repurchase shares Company may make Restricted Junior Payments to Holdings (A) in an aggregate amount not to exceed $50,000 in any trailing twelve month period, to the extent necessary to permit Holdings to pay general administrative costs and expenses, and (B) to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its capital stock or of any corporate parent (together with options or warrants Subsidiaries, in respect of any thereof) held by present and former officers, directors and employees of Borrower each case so long as such repurchase is pursuant to, and in accordance with Holdings applies the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior PaymentPayment for such purpose and (ii) the Company may distribute to Holdings, when added and Holdings may in turn distribute to the aggregate holders of Permitted Preferred Stock, dividends in common Capital Stock, Permitted Preferred Stock or Cash in an amount not to exceed 15.0% per annum of the face amount of all Restricted Junior Payments previously declared such Permitted Preferred Stock. Notwithstanding anything herein to the contrary, no amount shall be permitted to be distributed by any Credit Party to pay, or otherwise in connection with, any Tax resulting from the cancellation or discharge of Indebtedness.
(b) No Credit Party shall, nor shall it permit any of its Subsidiaries to, issue any Capital Stock without duplicationthe prior written approval of the Requisite Lenders, other than (i) paid by Borrower pursuant common stock, and options and warrants to this clause purchase common stock, (vii) during Permitted Preferred Stock, and (iii) the period commencing Series B Preferred Stock of Holdings on the Closing Date terms set forth in the draft Certificate of Designation delivered to the Administrative Agent on June 17, 2015. Concurrently with any issuance of any Capital Stock of any Subsidiary of Holdings, the Credit Parties shall cause such Capital Stock to be subject to a perfected First Priority Lien in favor of the Collateral Agent for the benefit of the Secured Parties, and ending on shall deliver all such documents, opinions, filings, searches and other deliverables as the Declaration DateCollateral Agent shall require in connection with such Lien.
(c) Without limiting the foregoing restrictions in Sections 6.5(a) and 6.5(b), does not exceed 50% no Credit Party shall, nor shall it permit any of cumulative Consolidated Net Income of Borrower and its Subsidiaries for or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any cash dividend or other distribution, direct or indirect, on account of any shares of any class of preferred Capital Stock of Holdings (other than Permitted Preferred Stock) or Company now or hereafter outstanding, except with the period commencing on the Closing Date and ending on the last day prior written consent of the Fiscal Quarter most recently endedRequired Lenders.
Appears in 1 contract
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that so long as no Event of Default or Potential Event of Default has shall have occurred and is be continuing or would shall be caused thereby, Borrower may:
(i) repurchase shares Borrower may make regularly scheduled payments of its capital stock or of any corporate parent (together with options or warrants interest in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and Subordinated Indebtedness in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions contained in, the indenture or shareholder agreementsother agreement pursuant to which such Subordinated Indebtedness was issued, as such indenture or other agreement may be amended from time to time to the extent permitted under subsection 7.15;
(ii) repurchase, redeem, defease Borrower may repurchase or otherwise prepay or retire redeem the Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares Notes in accordance with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) the Senior Subordinated Note Indenture if after giving pro forma effect to such repurchase or redemption and to the making incurrence of any other Restricted Junior Payment pursuant to the terms of this clause (v)Indebtedness in connection with such repurchase or redemption, (X) the Borrower’s Consolidated Leverage Fixed Charge Coverage Ratio as of the last day of the immediately preceding Fiscal Quarter most recently ended for which Borrower has delivered financial statements pursuant to subsection 6.1(ii) shall be less than 4.00:1.00 in excess of 2.00:1.00;
(iii) Borrower may declare and (Y) make dividend payments in respect of the aggregate amount stock of any such Restricted Junior Payment, when added to Borrower and repurchase stock of Borrower; provided that the aggregate amount of all Restricted Junior Payments previously declared such dividends and repurchases in any Fiscal Year shall not exceed the lesser (such lesser amount being the “Maximum Permitted Stock Payments”) of (1) $25,000,000 or (without duplication2) paid 50% of Consolidated Net Income of Borrower (if a positive number) for the immediately preceding Fiscal Year; provided further that the Maximum Permitted Stock Payments for any Fiscal Year shall be increased by an amount equal to the excess, if any, of the Maximum Permitted Stock Payments for the previous Fiscal Year (as adjusted in accordance with this proviso) over the actual amount of dividend payments and/or repurchases of Borrower’s stock made in such previous Fiscal Year; provided further that after giving effect to any such dividend or repurchase Borrower shall be in pro forma covenant compliance and the aggregate amount of all such dividend payments and stock repurchases made pursuant to this clause (viii) during the period commencing on the Closing Date and ending on the Declaration Date, does shall not exceed 50% $50,000,000;
(iv) in addition to dividend payments and stock repurchases permitted pursuant to clause (iii) above, Borrower may declare and make dividend payments in respect of cumulative Consolidated Net Income the stock of Borrower and its Subsidiaries for repurchase stock of Borrower; provided that (1) after giving pro forma effect to such dividend payment or stock repurchase and to the period commencing on the Closing Date and ending on the last day incurrence of any Indebtedness in connection therewith, Borrower’s Consolidated Adjusted Leverage Ratio as of the date of the immediately preceding Fiscal Quarter most recently endedfor which Borrower has delivered financial statements pursuant to subsection 6.1(ii) shall not exceed 1.65:1.00 and (2) the sum of Borrower’s Cash and Cash Equivalents immediately prior to such dividend payment or stock repurchase is not less than the amount of such dividend payment or stock repurchase, and such Cash or Cash Equivalents shall actually have been applied to make such dividend payment or stock repurchase; and
(v) Borrower may purchase stock of Borrower by way of a cashless exercise of options thereunder.
Appears in 1 contract
Samples: Credit Agreement (Joy Global Inc)
Restricted Junior Payments. Neither the Borrower shall notnor any Restricted Subsidiary will declare or pay or make, and shall not permit any of its Subsidiaries toor agree to declare or pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional Equity Interests (other than Disqualified Equity Interests) permitted hereunder; PROVIDED [[NYCORP:3374084v15:3156W: 11/13/2012--12:30 p]]
(b) any Restricted Subsidiary may declare and pay dividends or make other distributions with respect to its capital stock, partnership or membership interests or other similar Equity Interests, and declare and make other Restricted Junior Payments in respect of its Equity Interests, in each case (other than in the case of any Restricted Junior Payment made solely in Equity Interests that are not Disqualified Equity Interests) ratably to the holders of such Equity Interests (or, if not ratably, on a basis more favorable to the Borrower and the Restricted Subsidiaries);
(c) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower or Potential any Restricted Subsidiary may repurchase any Equity Interests held by the minority investors in any Restricted Subsidiary that is not a wholly owned Subsidiary pursuant to the exercise of any put/call rights under the Existing Shareholders’ Agreements;
(d) the Borrower may make repurchases of its Equity Interests deemed to occur upon the “cashless exercise” of stock options, stock purchase rights and stock exchange rights if such Equity Interests represent a portion of the exercise price of such options or rights or withholding taxes due upon such exercise, purchase or exchange;
(e) the Borrower may make cash payments in lieu of the issuance of fractional shares representing insignificant interests in the Borrower in connection with the exercise of warrants, options or other Securities convertible into or exchangeable for capital stock in the Borrower, provided that any such cash payment shall not be for the purpose of evading the limitations set forth in this Section 6.4;
(f) so long as no Default or Event of Default has shall have occurred and is continuing be continuing, the Borrower may make Restricted Junior Payments, pursuant to and in accordance with stock option plans or would other benefit plans or agreements for current or former directors, officers or employees of the Borrower and the Subsidiaries, provided that the aggregate amount of such Restricted Junior Payments shall not exceed $2,500,000 in any Fiscal Year (with any unused amount in any Fiscal Year being permitted to be caused therebycarried over to the succeeding Fiscal Year (but not to any other Fiscal Year), so that the aggregate amount that may be expended in any Fiscal Year, including any carry-over, may not exceed $5,000,000);
(g) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may:may declare and pay cash dividends or other cash distributions in respect of its preferred Equity Interests (including the Existing Borrower Preferred Stock), provided that the aggregate amount of such Restricted Junior Payments in any Fiscal Year shall not exceed $10,000,000;
(h) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may declare and pay ordinary quarterly cash dividends in an amount not to exceed $0.04 per issued and outstanding share of common stock of the Borrower; provided that the per share amount shall be adjusted to take into account any stock split, reclassification of shares or other event that may increase the number of shares of common stock of the Borrower without a commensurate increase in the equity value of the Borrower; [[NYCORP:3374084v15:3156W: 11/13/2012--12:30 p]]
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants the Borrower and the Guarantor Subsidiaries may make regularly scheduled interest and principal payments as and when due in respect of any Junior Indebtedness, other than payments in respect of Subordinated Indebtedness prohibited by the subordination provisions thereof;
(j) held by present the Borrower and former officersthe Guarantor Subsidiaries may refinance Junior Indebtedness with the proceeds of other Indebtedness permitted under Section 6.1;
(k) the Borrower and the Guarantor Subsidiaries may make payments of or in respect of Junior Indebtedness made solely with Equity Interests (other than Disqualified Equity Interests) in the Borrower;
(l) prior to the Drop Down Date, directors at any time when the aggregate outstanding principal amount of the Term Loans shall be the MLP Amount or less, the Borrower and employees of Borrower the Restricted Subsidiaries may make additional Restricted Junior Payments in cash so long as such repurchase is pursuant to(i) no Default or Event of Default shall have occurred and be continuing, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchaseat the time of the making thereof (or, redeemin the case of any Restricted Junior Payment of the type described in clause (a) of the definition thereof, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that at the time of the declaration thereof) and after giving pro forma effect (or, in the case of any Restricted Junior Payment of the type described in clause (c) of the definition thereof, prior to giving effect thereto) thereto (including any related incurrence of Indebtedness), the Available Amount Usage Leverage Ratio shall not exceed 2.00 to 1.00, (iii) at the time of the making thereof, the aggregate amount of each Restricted Junior Payment made in reliance on this clause (l) shall not exceed the Available Amount;
Basket Amount at such time and (iv) the Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Borrower certifying that all the requirements set forth in this clause (l) have been satisfied with respect to such Restricted Junior Payment and including reasonably detailed calculations demonstrating satisfaction of the requirements set forth in clauses (ii) and (iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged thereforabove; and
(vm) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower and the Restricted Subsidiaries may make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend Payments in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the cash in an aggregate amount of any for all such Restricted Junior Payment, when added Payments taken together not to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended$10,000,000.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Alon USA Energy, Inc.)
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for Make any Restricted Junior Payment; PROVIDED that provided, however, that, so long as it is permitted by Law, and so long as no Default or Event of Default shall have occurred and be continuing or Potential would result therefrom,
(a) Parent or any Borrower may make distributions to former employees, officers, or directors of Parent or such Borrower (or any spouses, ex-spouses, or estates of any of the foregoing) on account of redemptions of Stock of Parent or such Borrower held by such Persons, provided, however, that the aggregate amount of such redemptions made by Parent or Borrowers during the term of this Agreement plus the amount of Indebtedness outstanding under clause (l) of the definition of Permitted Indebtedness, does not exceed $2,500,000 plus the aggregate amount of any proceeds of any key man life insurance received by the Parent in the aggregate,
(b) Parent or any Borrower may make distributions to former employees, officers, or directors of Parent or such Borrower (or any spouses, ex-spouses, or estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons owing to Parent or such Borrower on account of repurchases of the Stock of Parent or such Borrower held by such Persons; provided that such Indebtedness was incurred by such Persons solely to acquire Stock of Parent or such Borrower.
(c) the Parent may declare and pay cash dividends and distributions to (A) to the extent necessary to permit the Parent to pay legal, accounting and reporting expenses, (B) in an aggregate amount not to exceed $1,500,000 in any Fiscal Year, to the extent necessary to permit the Parent to pay general administrative costs and expenses and to pay reasonable directors fees and expenses, (C) so long as no Default or Event of Default has shall have occurred and is continuing or would be caused therebycontinuing, Borrower may:
to repurchase Stock owned by employees (i) repurchase shares to the extent the purchase price exceeds the amount of its capital stock or of any corporate parent (together with options or warrants outstanding advances made to such employees in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance connection with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(iipurchase of Stock) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of agreements with such employees in an aggregate amount of such repurchases by Parent during the term of this Agreement plus the aggregate amount of any redemptions under clause (va) above not to exceed $2,500,000 plus the aggregate amount of any proceeds of any key man life insurance received by the Parent and (D) to the extent necessary to permit the Parent to pay management fees, transactional fees and reasonable out-of-pocket expenses to the Sponsor permitted under Section 6.12, and
(d) for so long as any Borrower or Parent or any of their respective Subsidiaries are a member of a group filing a consolidated, combined, unitary or similar tax return with any direct or indirect parent of Parent, such Borrower, Parent and/or any such Subsidiaries may make payments to such direct or indirect parent in respect of a reasonable estimate of the allocable portion of the consolidated, combined, unitary or similar income taxes of such group that are attributable to the income of such Borrower, Parent and/or any such Subsidiaries (to the extent such taxes are not payable directly by any such Borrower, Parent or any of their respective Subsidiaries) (“Tax Payments”); provided that such Tax Payments shall not exceed a reasonable estimate of the lower of (i) the amount of the relevant tax (including any penalties and interest) that such Borrower, Parent or any of their respective Subsidiaries, as the case may be, would owe if it were filing a separate tax return (or a separate consolidated, combined, unitary or similar return with its Subsidiaries that are members of the relevant consolidated, combined, unitary or similar group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of Borrower, Parent or any of their respective Subsidiaries, as the case may be, from other taxable years that are utilizable on such tax return and (ii) the amount of the relevant tax that the direct or indirect parent actually owes to the appropriate taxing authority; provided further that any Tax Payments received from such Borrower, Parent or any such Subsidiaries shall be refunded to such Borrower, Parent or any such Subsidiaries in the event that the amount of such Tax Payments exceeds the actual amount that the direct or indirect parent actually pays to the appropriate taxing authority. Notwithstanding the foregoing, (i) there shall be no restrictions on the making of any other Restricted Junior Payment pursuant if, after giving effect to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added the Specified Covenant Compliance Test will be satisfied, and (ii) there shall be no restriction on the ability of a Loan Party to the aggregate amount of all make a Restricted Junior Payments previously declared or Payment to another Loan Party (without duplication) paid by Borrower pursuant to this clause (v) during other than the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedParent).
Appears in 1 contract
Restricted Junior Payments. Borrower No Credit Party shall, nor shall not, and shall not it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment; PROVIDED Payment except that so long as no Event (a) Company may make regularly scheduled payments of Default interest (including payments of additional interest imposed under the indenture or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
(iother agreement pursuant to which such Subordinated Indebtedness was issued for failure to comply with certain provisions thereof) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and Subordinated Indebtedness in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions contained in, the indenture or shareholder agreements;
other agreement pursuant to which such Subordinated Indebtedness was issued; (b) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Company may make Restricted Junior Payments to Holdings (and, subject to delivery of the Parent Credit Document, Holdings may make Restricted Junior Payments to Parent) (i) in an aggregate amount not to exceed $400,000 in any Fiscal Year, to the extent necessary to permit Holdings (or Parent, as applicable) to pay general administrative costs and expenses and to pay franchise taxes and other fees to maintain its corporate existence and (ii) repurchaseto the extent necessary to permit Holdings (or Parent, redeemas applicable) to discharge the consolidated tax liabilities of Holdings (or Parent, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iiias applicable) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of and its common stock;
(iv) redeem or exchangeEXECUTION 104 Subsidiaries, in whole each case so long as Holdings (or in partParent, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account applicable) applies the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior PaymentPayment for such purpose (provided this Section 6.5 shall not prohibit direct payment of by Company of taxes for itself and its Subsidiaries or such other costs and expenses), when added to the aggregate amount of all (c) Company may make Restricted Junior Payments previously declared or to Holdings for the purpose of paying, and Holdings may pay (without duplicationi) paid by Borrower the Subordinated Management Fees plus reasonable out-of-pocket expenses incurred pursuant to this clause the Management Services Agreement and (vii) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedPermitted Management Stock Repurchase Payments.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Autocam International LTD)
Restricted Junior Payments. Borrower shall notNone of Holdings, and shall not permit the Company or any of its the Company's Subsidiaries to, directly shall declare or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower mayexcept:
(i) repurchase shares of its capital stock or of regularly scheduled cash dividends by Holdings on the Preferred Stock in an aggregate amount not to exceed $1,200,000 in any corporate parent (together with options or warrants Fiscal Year; provided that in respect of the event such dividends actually paid in any thereof) held by present and former officersFiscal Year are less than the maximum permitted to be paid during such Fiscal Year, directors and employees of Borrower so long as the unpaid amount for such repurchase is pursuant to, and in accordance with Fiscal Year may be carried over to the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreementsnext succeeding Fiscal Year;
(ii) repurchase, redeem, defease regularly scheduled payments of principal and interest by Holdings on the Indebtedness evidenced by the Common Equity Notes issued to the holders of Common Stock either (A) pursuant to the Shareholders' Agreement or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto (B) pursuant to the Available Amount Usage shall not exceed the Available AmountESOP;
(iii) purchase, redeem cash dividends on the Capital Stock of the Company to Holdings paid and declared on or otherwise acquire shares of common stock of Borrower or warrants or options prior to acquire any such shares with proceeds received the Closing Date to fund the transactions contemplated by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stockthe Acquisition Documents;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account cash dividends on the relative amounts Capital Stock of the shares Company to Holdings paid and declared in any Fiscal Year (A) to fund the payment of each class taxes and ordinary operating expenses of capital stock involved Holdings, (B) to fund the payment of Transaction Costs of Holdings not in such redemption or exchange) that are at least as advantageous to Lenders as those contained excess of $6,000,000 in the capital stock redeemed or exchanged therefor; andaggregate and (C) to fund payments permitted to be made by Holdings pursuant to clauses (i), (ii) and (vii) of this Section 9.06;
(v) make other Restricted Junior Payments; PROVIDED that cash dividends paid solely to a Borrower by any of such Borrower's Subsidiaries;
(vi) regularly scheduled payments of interest and principal on the date (Permitted Subordinated Indebtedness but only to the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock extent permitted to be paid pursuant to the terms of this clause such Permitted Subordinated Indebtedness; and
(vvii) after the first anniversary of the Closing Date, payments made by Holdings in respect of (A) redemptions of the Preferred Stock, (B) repurchases of the Nonvoting Common Stock (but only to the extent such Nonvoting Common Stock is subject to a put or call pursuant to the making Nonvoting Common Stock Purchase Agreement), (C) repurchases of other Capital Stock of Holdings put to (or, in the case of Capital Stock subject to the Shareholders' Agreement and held by former employees of Holdings, the Borrowers or any other Restricted Junior Payment Subsidiary Guarantor, called by) Holdings pursuant to the terms of this clause the Shareholders' Agreement or the ESOP and principal prepayments of any Common Equity Notes; provided, however, that the Restricted Junior Payments described in clauses (vi), (Xii)(A), (iv) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Yvii) above shall not be permitted if either (A) a Default or an Event of Default shall have occurred and be continuing at the aggregate amount date of any declaration or payment thereof or would result therefrom or (B) such Restricted Junior PaymentPayment is prohibited under the terms of any Indebtedness or Capital Stock of Holdings, when added the Company or any of the Company's Subsidiaries; and provided, further, that cash redemptions permitted under clause (vii) above shall be limited to the excess, if any, of the average aggregate amount Revolving Credit Availability under all Credit Facilities (plus, after the inception of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant the Permitted Receivables Financing Program, the average liquidity available to this clause (vthe Borrowers under the Permitted Receivables Financing Program) during the period commencing on thirty days immediately preceding the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries date set for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedsuch payment over $15,000,000.
Appears in 1 contract
Restricted Junior Payments. Borrower Holdings shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that:
(i) (x) any wholly-owned Subsidiary of Borrower can pay dividends to Borrower or any wholly owned Subsidiary of Borrower and (y) any non-wholly-owned Subsidiary of Borrower may pay cash dividends to its shareholders generally so long as Borrower or its respective Subsidiary which owns the equity interest in the Subsidiary paying such cash dividends receives at least its proportionate share thereof (based upon its relative holding of the equity interests in the Subsidiary paying such cash dividends and taking into account the relative preferences, if any, of the various classes of equity interests of such Subsidiary);
(ii) so long as no Default or Event of Default then exists or would result therefrom, Borrower may make Restricted Junior Payments to Holdings, and Holdings may make Restricted Junior Payments in the aggregate amount not to exceed the sum of $15,000,000 plus the amount of the accrued interest on the Seller Contingent Note, to the extent necessary, to pay any Contingent Obligation, Indebtedness or accrued interest under the Seller Contingent Note in accordance with its terms (as in effect as of the Restatement Effective Date);
(iii) so long as no Default or Event of Default then exists or would result therefrom, Borrower may (in accordance with each of the following separate baskets in clauses (x) and (y)) repurchase Senior Subordinated Notes and Permitted Additional Subordinated Indebtedness; provided, that the aggregate amount of such Restricted Junior Payment shall not exceed in the aggregate the sum of (x) the Excess Proceeds Amount and (y) the aggregate amount of Net Common Equity Proceeds and Qualified Preferred Stock Proceeds received by Holdings from the sale or issuance of Holdings Common Stock or Qualified Preferred Stock, as the case may be, not required to be applied to the payment of the Loans and/or reduction of the Revolving Loan Commitments pursuant to subsection 2.4B(iii)(e); provided, further, notwithstanding the foregoing proviso, Borrower may repurchase Senior Subordinated Notes and Permitted Additional Subordinated Indebtedness with the proceeds of Permitted Additional Subordinated Indebtedness;
(iv) Borrower may make regularly scheduled payments of interest in respect of (x) the Senior Subordinated Notes in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the Senior Subordinated Notes and the Senior Subordinated Note Indentures and (y) the Permitted Additional Subordinated Indebtedness in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the Permitted Additional Subordinated Indebtedness and the instruments and agreements governing the same;
(v) if payments are required to be made by Holdings under the Recapitalization Agreement, Borrower may make Restricted Junior Payments to Holdings to the extent necessary to enable Holdings to make such payments;
(vi) Borrower may make Restricted Junior Payments to Holdings, and Holdings may make Restricted Junior Payments (a) in an aggregate amount not to exceed (x) at any time prior to a Qualified IPO, $1,500,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses (including professional fees and director indemnities) and (y) at any time on and after a Qualified IPO, $5,000,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses (including professional fees and director indemnities) and such other bona fide costs and expenses associated with Holdings being a "public company" and (b) to the extent necessary to permit Holdings to discharge the consolidated Tax liabilities of Holdings and its Subsidiaries;
(vii) so long as no Event of Default under subsection 8.1, 8.6 or 8.7 shall have occurred and be continuing, (x) Holdings and its Subsidiaries may make payments of the Bain Management Fees owing under the Bain Advisory Services Agrexxxxt when and as due, provided that the pxxxxon of such fee that accrued but was not payable during the existence and continuation of such Event of Default shall be permitted to be paid at such time as such Event of Default has been cured or waived and no other Event of Default is then in existence and (y) on and after the consummation of a Qualified IPO, Holdings may prepay in full the Bain Management Fees owing to Bain over the term of the Bain Advxxxxy Services Agreement, so long ax (I) such prepayment xx made solely with Net Common Equity Proceeds received by Holdings from the sale or issuance of Holdings Common Stock and (II) the aggregate amount of the Bain Management Fees so prepaid does not exceed $10,000,000;
(viii) so long as no Potential Event of Default has occurred and is continuing or Event of Default then exists or would be caused therebyresult therefrom, Borrower may:
(i) repurchase shares may make Restricted Junior Payments to Holdings to the extent required for Holdings to make, and Holdings may make, Restricted Junior Payments in an aggregate amount not to exceed $17,500,000 in the aggregate to the extent necessary to make repurchases of its capital stock or of any corporate parent (together with and options or warrants in respect to purchase such capital stock) of any thereof) Holdings held by present any shareholder of Holdings (other than Bain and former officers, directors and employees the Other Investors) and/or to make payments of Borrower so long as such repurchase is pursuant to, principal anx/xx interest under (and in accordance with the terms of) Shareholder Subordinated Notes and Shareholder Subordinated PIK Notes permitted under subsection 7.1(viii) (subject, management and/or employee stock planshowever, stock subscription agreements to the subordination provisions contained in such Shareholder Subordinated Notes and Shareholder Subordinated PIK Notes), provided that Borrower and Holdings may make additional Restricted Junior Payments for the purposes described above in this subsection 7.5(viii) in an aggregate amount not to exceed $10,000,000 at any time on and after a Qualified IPO, if on or shareholder agreements;
after a Qualified IPO Holdings shall have delivered to Administrative Agent an Officer's Certificate (ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares together with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchangesupporting calculations), in whole or in partform and substance reasonably satisfactory to Administrative Agent, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED certifying that such other class of capital stock contains terms and provisions (taken as a wholethe Senior Leverage Ratio, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio calculated as of the last day of the Fiscal Quarter most recently Test Period then last ended (which day shall be on or after the date of consummation of the Qualified IPO) immediately prior to the date of such Officer's Certificate, is less than 4.00:1.00 1.75:1.0 (such calculation to be determined on a pro forma basis, as if all indebtedness incurred after the last day of the Test Period then last ended and then outstanding (including any indebtedness incurred to finance such repurchases) had been incurred on the first day of the Test Period then last ended and taking account of any additional adjustments required by subsection 7.6D);
(ix) so long as no Event of Default is then in existence or would result therefrom, Borrower may make scheduled interest and principal payments in respect of Permitted Seller Notes permitted under subsection 7.l(ix) in accordance with the terms of such Permitted Seller Notes;
(x) Holdings may pay regularly accruing dividends with respect to Qualified Preferred Stock through the issuance of additional shares of Qualified Preferred Stock (but in no event shall such dividends be Cash) if required by the terms of the documentation governing the same (as in effect on the Restatement Effective Date;
(xi) so long as no Potential Event of Default or Event of Default then exists or would result therefrom, Borrower may make Restricted Junior Payments to Holdings to the extent necessary to enable Holdings to, and Holdings may (x) repurchase the capital stock of Holdings from a Franchisee and (Yy) make payments of principal and/or interest under (and in accordance with the terms of) Shareholder Subordinated Notes and Shareholder Subordinated PIK Notes permitted under subsection 7.1(viii) (subject, however, to the subordination provisions contained in such Shareholder Subordinated Notes and Shareholder Subordinated PIK Notes) in the aggregate at any time, in connection with (x) the Permitted Acquisition of a pizza franchise from a Franchisee or Franchisee Affiliate or (y) the termination of such Franchisee's franchise agreement, provided that the aggregate amount of such repurchases and payments of principal and/or interest shall not exceed in the aggregate at any time $15,000,000 and, provided, further, that Borrower and Holdings may make additional Restricted Junior Payments for the purposes described above in this subsection 7.5(xi) in an aggregate amount not to exceed $5,000,000 at any time on and after a Qualified IPO, if on or after a Qualified IPO Holdings shall have delivered to Administrative Agent an Officer's Certificate (together with supporting calculations), in form and substance reasonably satisfactory to Administrative Agent, certifying that the Senior Leverage Ratio, calculated as of the last day of the Test Period then last ended (which day shall be on or after the date of consummation of the Qualified IPO) immediately prior to the date of such Officer's Certificate, is less than 1.75:1.0 (such calculation to be determined on a pro forma basis, as if all indebtedness incurred after the last day of the Test Period then last ended and then outstanding (including any indebtedness incurred to finance such repurchases and payments of principal and/or interest) had been incurred on the first day of the Test Period then last ended and taking account of any additional adjustments required by subsection 7.6D);
(xii) Borrower may make Restricted Junior Payments to Holdings to the extent necessary to enable Holdings to, and Holdings may make payments to consummate the Transaction on the Restatement Effective Date;
(xiii) so long as no Potential Event of Default or Event of Default then exists or would result therefrom, Borrower may make Restricted Junior Payments to Holdings to the extent required for Holdings to make, and Holdings may make, Restricted Junior Payments in an aggregate amount not to exceed $5,000,000 in the aggregate to the extent necessary to make repurchases of capital stock (and options or warrants to purchase such capital stock) of Holdings held by directors, managers or employees of Borrower or its Subsidiaries upon the death, disability or termination of employment of any such director, manager or employee; and
(xiv) so long as no Default or Event of Default then exists or would result therefrom, Borrower may make scheduled principal payments on, or repurchase on the open market, Existing Senior Subordinated Notes, provided that (x) the aggregate amount of any such Restricted Junior Payment, when added Cash used to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower make payments and/or repurchases pursuant to this clause (vsubsection 7.5(xiv) during the period commencing on the Closing Date and ending on the Declaration Date, does shall not exceed 50% $13,200,000, (y) the Cash paid in respect of cumulative Consolidated Net Income such payment or repurchase shall not exceed the principal amount of Borrower such Existing Senior Subordinated Notes so repaid or repurchased and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended(z) any such Existing Senior Subordinated Notes so repurchased are permanently retired and/or cancelled after such repurchase.
Appears in 1 contract
Samples: Credit Agreement (Dominos Inc)
Restricted Junior Payments. Borrower Borrowers shall not, and shall not permit any of its their Restricted Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that so long as Borrowers may (i) provided that no Event of Default or Potential Event of Default has occurred and is continuing or would be caused therebyoccur immediately after giving effect to such payment, Borrower may:
(iA) repurchase shares make regularly scheduled payments of its capital stock or of any corporate parent (together with options or warrants interest in respect of any thereofSubordinated Indebtedness, (B) held by present make regularly scheduled payments of principal and former officersaccrued interest in respect of any Subordinated Indebtedness issued prior to the Closing Date, directors (C) pay Mandatory Redemption Amounts and employees accrued interest thereon in respect of Borrower any Subordinated Indebtedness and (D) redeem Subordinated Indebtedness from the proceeds of the prior issuance of Subordinated Indebtedness permitted pursuant to subsection 7.1(vi) provided that the Subordinated Indebtedness issued to make such redemption payments bears interest at a lower rate than the Subordinated Indebtedness so long as such repurchase is pursuant toredeemed, and in each case in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions contained in, the Approved Indenture pursuant to which such Subordinated Indebtedness was issued, as such indenture or shareholder agreements;
other agreement may be amended from time to time to the extent permitted under subsection 7.12B, and (ii) repurchaseso long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt(a) pay Permitted Cash Patronage Dividends; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(ivb) redeem equity interests of patrons or exchange, Members with cash payments upon the death of individual patrons or Members in whole or in part, any capital stock of Borrower an aggregate amount not to exceed $500,000 per Fiscal Year for shares of another class of capital stock of Borrower or rights to acquire shares of all such other class of capital stockcash redemptions; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchangec) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that pay dividends on the date (the "DECLARATION DATE") of declaration of any dividend Company's Preferred Stock in respect of Borrower's outstanding capital stock pursuant an aggregate annual amount not to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently ended$8,000,000.
Appears in 1 contract
Restricted Junior Payments. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED , except that:
(i) the Borrower may make the Xxxx Distribution, provided that so long as (a) any portion of the Xxxx Distribution not paid on the Effective Date shall be paid in a single payment on or before Xxxxx 00, 0000, (x) on the date of such payment, no Event of Default or Potential Event of Default has shall have occurred and is continuing or be continuing, or would be caused therebyresult therefrom, Borrower may:
and (ic) repurchase shares of its capital stock or prior to the date of any corporate parent (together with options such payment after the Effective Date, the Borrower shall deliver to the Administrative Agent a financial condition certificate signed by the chief financial officer or warrants treasurer of the Borrower certifying that the Borrower is Solvent after giving effect to such payment and attaching thereto financial projections and a pro forma "fair value" balance sheet of the Borrower and its Subsidiaries supporting such certification, which certificate and attachments shall be in respect form and substance satisfactory to each of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;Lenders; and
(ii) repurchaseas long as (a) no Event of Default or Potential Event of Default shall have occurred or be continuing, redeemor would result therefrom, defease or otherwise prepay or retire and (b) one of the following (a "Dividend Release Event") shall have occurred:
(1) the Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that Notes shall have been refinanced on terms and conditions acceptable to the Administrative Agent and the Lenders and principal payments with respect to such refinancing indebtedness shall commence not earlier than ninety-one (91) days after giving effect thereto the Available Amount Usage shall not exceed the Available AmountTermination Date;
(iii2) purchaseall principal payments on the Senior Notes shall have been deferred until at least ninety-one (91) days after the Termination Date; or
(3) the Borrower shall have received Net Cash Proceeds of at least $25,000,000 from a Financing, redeem which Net Cash Proceeds shall have been applied either to the prepayment of the Obligations pursuant to Section 2.07(b)(iii)(B) or otherwise acquire shares to the prepayment of principal payments on the Senior Notes which are payable prior to ninety-one (91) days after the Termination Date, and the principal payments with respect to such Financing shall commence not earlier than ninety-one (91) days after the Termination Date; then the Borrower may (A) declare and pay ordinary dividends on its outstanding common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least amounts as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
may be determined by its Board of Directors and (vB) make other Restricted Junior Payments; PROVIDED distributions (including, without limitations, dividends on preferred stock and payments for the redemption or repurchase of common or preferred stock) provided that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during such distributions from and after the period commencing on the Closing Date and ending on the Declaration Date, date hereof does not exceed 50% of cumulative Consolidated Net Income determined for all fiscal quarters ending after the occurrence of Borrower and its Subsidiaries for a Dividend Release Event but prior to the period commencing on the Closing Date and ending on the last day date of the Fiscal Quarter most recently endedsuch distribution.
Appears in 1 contract
Restricted Junior Payments. Borrower shall not, will not and shall will not permit any of its Subsidiaries to, Subsidiary to directly or indirectly, indirectly declare, order, pay, make or set apart any sum for (a) any Restricted Junior Paymentdividend or other distribution, direct or indirect, on account of any shares of any class of stock of Borrower or any Subsidiary now or hereafter outstanding; PROVIDED that so long as no Event (b) any redemption, conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of Default any shares of any class of stock of Borrower or Potential Event any Subsidiary now or hereafter outstanding; or (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of Default has occurred and is continuing any class of stock of Borrower or would be caused thereby, Borrower mayany of its Subsidiaries now or hereafter outstanding except:
(i) repurchase Subsidiaries of Borrower may make, declare and pay dividends and make other distributions with respect to their capital stock (A) to the extent necessary to permit Borrower to pay the Obligations and to permit Borrower to pay expenses incurred in the ordinary course of business, and (B) additionally with respect to PMC and in connection with the sale of PMC or its assets, to the extent necessary to cancel the indebtedness evidenced by the intercompany note executed by Borrower and payable to the order of PMC;
(ii) Borrower and the Subsidiaries may declare and pay dividends on its common stock payable solely in shares of common stock;
(iii) if prior written notice is provided to Agent and the Banks, Borrower may set apart and pay sums for the acquisition of up to 54,594 shares of its capital common stock held by the Joshxx Xxxritable Trust or other Persons who are not Shareholders or an Affiliate of a Shareholder (a "STOCK REPURCHASE") if:
(A) any Stock Repurchase from the Joshxx Charitable Trust is consummated on or before January 31, 1998 and any other Stock Repurchase is consummated on or before July 31, 1996;
(B) the aggregate amount paid for all Stock Repurchases since the Closing Date does not exceed One Million Five Hundred Thousand Dollars ($1,500,000);
(C) As of the date the payment is made for any Stock Repurchase other than a Stock Repurchase consummated in connection with a public tender offer and after giving effect thereto, no Default shall exist and the sum of the Borrowing Base minus the Agency Account Reserve shall exceed the Outstanding Revolving Credit by not less than Five Million Dollars ($5,000,000); and
(iv) as long as no Default exists or would result therefrom, Borrower may repurchase its common stock or of any corporate parent (together with warrants or options or warrants in respect of any thereof) held by present to purchase its common stock from its and former the Subsidiaries' officers, directors and employees of Borrower so long as who received such repurchase is pursuant to, and in accordance with the terms of, management and/or stock or options from an employee stock plansoption or ownership plan established by Borrower (including repurchases arising as a result of the death, stock subscription agreements disability or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares termination of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchangeofficers, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stockdirectors and employees); PROVIDED provided that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of paid for such repurchases in any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, Fiscal Year does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedTwo Hundred Fifty Thousand Dollars ($250,000).
Appears in 1 contract
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for Make any Restricted Junior Payment; PROVIDED that provided, however, that, so long as it is permitted by law, and so long as (except as may be otherwise provided in clause (e) or (f) below) no Default or Event of Default shall have occurred and be continuing or Potential would result therefrom,
(a) Administrative Borrower may make distributions to former employees, officers, or directors of any Borrower (or any spouses, ex-spouses, or estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons owing to Administrative Borrower on account of repurchases of the Stock of Administrative Borrower held by such Persons; provided that such Indebtedness was incurred by such Persons solely to acquire Stock of Administrative Borrower,
(b) Administrative Borrower may make distributions to former employees, officers, or directors of Administrative Borrower (or any spouses, ex-spouses, or estates of any of the foregoing) on account of redemptions of Stock of Administrative Borrower held by such Persons, provided, however, that the aggregate amount of such redemptions made by Administrative Borrower plus the amount of Indebtedness outstanding under clause (l) of the definition of Permitted Indebtedness, does not exceed $1,000,000 in the aggregate in any fiscal year or $2,500,000 in the aggregate during the term of this Agreement,
(c) Administrative Borrower may make distributions in respect of its Stock (other than Stock consisting of the Permitted Convertible Notes, and, for the avoidance of doubt, the Permitted Warrants or the Permitted Bond Hxxxxx), or purchase, redeem, or otherwise acquire or retire for value any of its Stock (other than Stock consisting of the Permitted Convertible Notes, and, for the avoidance of doubt, the Permitted Warrants or the Permitted Bond Hxxxxx), so long as both prior to, and immediately after giving effect to, the making of such Restricted Junior Payment, Excess Availability is not less than $35,000,000,
(d) Administrative Borrower may make Restricted Junior Payments consisting of repurchases of Stock (other than Stock consisting of the Permitted Convertible Notes, and, for the avoidance of doubt, the Permitted Warrants or the Permitted Bond Hxxxxx) deemed to occur upon the non-cash exercise of stock options and warrants,
(e) whether or not a Default or Event of Default has shall have occurred and be continuing or would result therefrom, Administrative Borrower may make Restricted Junior Payments consisting of regularly scheduled cash payments of interest in respect of the Permitted Convertible Notes, and
(f) Administrative Borrower may make Restricted Junior Payments consisting of (i) [reserved], (ii) the optional redemption or purchase for cash of some or all of the Permitted Convertible Notes to the extent permitted by, and in compliance with the terms of, the Permitted Convertible Notes Documents, (iii) payment of cash in respect of the termination or settlement of a Permitted Bond Hedge or the purchase of a Permitted Bond Hedge, (iv) payment of cash in respect of the conversion of the Permitted Convertible Notes by holders of some or all thereof to the extent permitted by, and in compliance with the terms of, the Permitted Convertible Notes Documents, (v) payment of cash in respect of the termination or settlement of any Permitted Warrant, (vi) payment of cash by Administrative Borrower upon the maturity pursuant to their terms of the Permitted Convertible Notes, in compliance with the terms of the Permitted Convertible Note Documents, (vii) the optional redemption or purchase for (or with the proceeds from the issuance of) Permitted Stock by Administrative Borrower of some or all of the Permitted Convertible Notes, (viii) payment of Permitted Stock in respect of the conversion of the Permitted Convertible Notes by holders of some or all thereof to the extent permitted by, and in compliance with the terms of, the Permitted Convertible Notes Documents, and (ix) delivery of Permitted Stock in respect of the termination or settlement of a Permitted Warrant, in each case described in clauses (ii) through (vi) above, so long as immediately after making such payment, (A) no Default or Event of Default is continuing in existence or would be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officersprovided, directors and employees of Borrower so long as that such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage payment shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of be prohibited under this clause (vA) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) extent such payment is funded with the Consolidated Leverage Ratio as proceeds of the last day issuance by Administrative Borrower of Permitted Stock, by an additional contribution to the Fiscal Quarter most recently ended shall be less than 4.00:1.00 equity of Administrative Borrower by existing holders of Permitted Stock of Administrative Borrower or with the proceeds of Refinancing Indebtedness, and (YB) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedExcess Availability is at least $25,000,000.
Appears in 1 contract
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for Make any Restricted Junior Payment; PROVIDED provided, however, that, so long as it is permitted by law,
(a) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Borrower may make distributions to current or former employees, officers, or directors of Borrower (or any spouses, ex-spouses, trusts or estates of any of the foregoing) on account of redemptions, purchase, retirement or other acquisition for value of Stock of Borrower held by such Persons, so long as either (A)(1) the aggregate amount of such redemptions, purchases, retirement, other acquisitions for value, or payments made by Borrower since June 18, 2013 does not exceed $2,000,000 in the aggregate or $500,000 in any 12 month period and (2) any such redemptions, purchases, retirement, other acquisitions for value, or payments since June 18, 2013 in excess of $500,000 in the aggregate shall only be made if (x) if the Existing ABL Credit Agreement is in effect (and is an asset based loan containing “Availability” criteria) immediately after such Restricted Junior Payment, Borrower and Guarantors shall have Excess Availability (as defined in the Existing ABL Credit Agreement as in effect on the date hereof) of at least $7,500,000 immediately thereafter and (y) if immediately after such Restricted Junior Payment, the Existing ABL Credit Agreement is no longer in effect and/or is not an asset based loan or otherwise does not have any “Availability” criteria, Borrower and Guarantors shall have a Minimum Liquidity of at least $7,500,000 immediately thereafter; or (B) otherwise the Additionalthe aggregate amount of such Restricted Junior Payments would not exceed the available Builder Basket Amount to the extent the Builder Basket Conditions are met,
(b) Borrower may make distributions to current or former employees, officers, or directors of Borrower (or any spouses, ex-spouses, trusts or estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons owing to Borrower on account of repurchases of the Stock of Borrower held by such Persons; provided that such Indebtedness was incurred by such Persons solely to acquire Stock of Borrower or the direct or indirect parent of Borrower, 2336
(c) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the AdditionalBuilder Basket Conditions are met, Borrower may make distributions or payments (including payments in respect of Permitted Preferred Stock) up to the available Builder Basket Amount,
(d) Borrower’s Subsidiaries may make distributions to Borrower for the sole purpose of allowing Borrower to, and Borrower shall use the proceeds thereof solely to make payments, to the extent that such payments are required in the ordinary course of business and relate directly to Borrower and its Subsidiaries, or to services provided for or on behalf of Borrower and its Subsidiaries, in each case that are required to be paid in cash, when due of (i) corporate franchise fees and taxes actually owed by Borrower, (ii) legal and accounting and other professional fees and expenses actually incurred by Borrower, (iii) costs incurred to comply with Borrower’s reporting obligations under federal or state laws or as required to comply with the ABL Loan Documents, the Notes Documents, the 2017 Notes Documents, the Solus Loan Documents, or the Loan Documents, (iv) other customary corporate overhead expenses and other operations conducted by Borrower, in each case, in the ordinary course of business, and (v) purchase consideration with respect to an Acquisition permitted under this Agreement;,
(e) so long as Borrower is permitted to make the payments permitted by this Section 6.9, Borrower’s Subsidiaries may make dividends or distributions to Borrower for the purpose of permitting Borrower to make such payments and Borrower agrees to use the proceeds of such dividends or distributions solely for such purpose;,
(f) the payment of any dividend or other distribution on, or the consummation of any irrevocable redemption of, Stock in Borrower or any Subsidiary within 60 days after declaration or setting the record date for redemption thereof, as applicable, if at such date such payment would not have been prohibited by the provisions of this Section 6.9;6.9,
(g) the retirement of any Stock of Borrower by conversion into, or by or in exchange for, Stock (other than Prohibited Preferred Stock), or out of net cash proceeds of the issuance or the sale (other than to a Subsidiary of Borrower) of Stock (other than Prohibited Preferred Stock) of Borrower occurring within 60 days prior to such retirement, or the making of other Restricted Junior Payments out of the net cash proceeds of the sale (other than to a Subsidiary of Borrower) of Stock (other than Prohibited Preferred Stock) of Borrower occurring within 60 days prior to such Restricted Junior Payment;, 2337
(h) repurchase of Stock of Borrower deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities to the extent such Stock represents a portion of the exercise price of those stock options, warrants or other convertible or exchangeable securities or repurchase of such Stock to the extent the proceeds of such repurchase are used to pay taxes incurred by the holder thereof as a result of the issuance or grant thereof;,
(i) cash payment, in lieu of issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for the Stock of Borrower or a Subsidiary thereof, and
(j) Borrower may make cash distributions to Holdings solely with the proceeds of the Loans (as defined in the Solus Credit Agreement as in effect on the Second Amendment Effective Date) for the sole purpose of, within 120 days of the Second Amendment Effective Date, purchasing, repurchasing, retiring or canceling the PIK Notes and paying related fees and expenses, so long as no Event of Default shall exist at the time or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:immediately following such cash distribution,
(ik) repurchase shares Borrower may make cash distributions to Holdings solely with the proceeds of the 2017 Notes for the sole purpose of, substantially simultaneously with the effectiveness of the 2017 Notes Indenture and the issuance of the 2017 Notes, purchasing, repurchasing, exchanging, retiring or canceling the PIK Notes and paying related fees and expenses, and
(l) Borrower may make distributions to Holdings, within 30 days after the Third Amendment Effective Date in the aggregate amount not to exceed $3,000,000 for the sole purpose of repurchasing or redeeming warrants to purchase Stock of Holdings (or Stock issued upon the exercise of warrants). Notwithstanding the foregoing or anything else herein to the contrary, in no event shall any Restricted Junior Payment be made by Borrower or any of its capital stock Subsidiaries, directly or indirectly, the proceeds of any corporate parent (together with options or warrants in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchasewhich are used to prepay, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) defease, purchase, redeem repurchase or otherwise acquire shares of common stock of Borrower the PIK Notes, or warrants to pay any fees or options to acquire any such shares interest in cash with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchangerespect thereto, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock than pursuant to the terms of this clause clauseclauses (vj) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (Xk) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedabove.
Appears in 1 contract
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
(i) repurchase shares Borrower may make regularly scheduled payments of its capital stock interest in respect of the Subordinated Notes, in accordance with the terms of and to the extent required by, and subject to the subordination provisions contained in, the Subordinated Note Indentures and redeem, refinance, or replace the 9.00% Subordinated Notes due March, 2012 in accordance with subsection 7.1(vii) or other Subordinated Indebtedness in accordance with subsection 7.1(ix); (ii) Borrower may make regularly scheduled payments of any corporate parent (together with options or warrants interest in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and other Subordinated Indebtedness in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements and subject to the subordination provisions contained in, the indenture or shareholder agreements;
(ii) repurchaseother agreement pursuant to which such Subordinated Indebtedness was issued, redeem, defease as such indenture or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debtother agreement may be amended from time to time to the extent permitted under subsection 7.15B; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchaseBorrower may make a "Change of Control Offer" (as defined in either of the Subordinated Note Indentures) with respect to the Subordinated Notes; provided, redeem or otherwise acquire shares of common stock of Borrower or warrants or options however, that prior to acquire making any such shares with proceeds received "Change of Control Offer", either (x) Borrower shall (1) repay in full all Obligations (including, without limitation, any unpaid principal, interest, fees, costs and expenses owed by Borrower from substantially concurrent equity contributions under this Agreement or issuances any other Loan Document) and terminate all outstanding Commitments under this Agreement or (2) offer to repay in full all Obligations (including, without limitation, any unpaid principal, interest, fees, costs and expenses owed by Borrower under this Agreement or any other Loan Document) and terminate all outstanding Commitments under this Agreement and to repay such Obligations owed to each Lender which has accepted such offer, or (y) Administrative Agent and Requisite Lenders shall otherwise approve such "Change of new shares of its common stock;
Control Offer" with respect to the Subordinated Notes; (iv) Borrower may make Restricted Junior Payments to redeem or exchangeits Capital Stock, up to an aggregate amount not to exceed $25,000,000 through Fiscal Year 2007 and after Fiscal Year 2007, an aggregate amount not to exceed $50,000,000 from and after the Effective Date, provided, further, in whole or in partany Fiscal Year after Fiscal Year 2007, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Total Leverage Ratio as of the last day of the any Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any in which such Restricted Junior Payment is made, after giving pro forma effect to such Restricted Junior Payment, when added is less than 4.00 to the aggregate amount 1.00, then no such dollar limitation shall apply; and (v) Borrower or any of all its Restricted Subsidiaries may make Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedany Loan Party.
Appears in 1 contract
Restricted Junior Payments. Borrower Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED provided that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
(i) repurchase shares Company may make regularly -------- scheduled payments of its capital stock or of any corporate parent (together with options or warrants interest in respect of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and the Existing Subordinated Indebtedness in accordance with the terms of, management and/or employee stock plansand only to the extent required by, stock subscription agreements or shareholder agreements;
and subject to the subordination provisions contained in, the Existing Subordinated Agreements, (ii) repurchase, redeem, defease or otherwise prepay or retire Company may make regularly scheduled payments of interest in respect of the Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto Notes in accordance with the Available Amount Usage shall not exceed terms of, and only to the Available Amount;
extent required by, and subject to the subordination provisions contained in, the Senior Subordinated Note Indenture, (iii) purchaseCompany may make regularly scheduled payments of interest in respect of the Bridge Notes and the Rollover Notes, redeem in an amount not to exceed 15% per annum in cash and an additional 2% per annum in the form of additional Bridge Notes or otherwise acquire shares Rollover Notes, in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the Bridge Loan Agreement, (iv) Company may make regularly scheduled sinking fund payments in accordance with the terms of, and only to the extent required by, the Existing Subordinated Note Indenture and may repay the outstanding principal amount of the Existing Senior Subordinated Notes on the scheduled maturity thereof, (v) Company may exchange the Bridge Notes for the Rollover Notes and may repay the principal amount and premium, if any, of the Bridge Notes or the Rollover Notes with the proceeds of the Senior Subordinated Notes, (vi) Company may exchange Company Series A Preferred Stock and Company Series C Preferred Stock for Company Series B Preferred Stock and may exchange Company Series A Preferred Stock, Company Series B Preferred Stock or Company Series C Preferred Stock for common stock of Borrower or warrants or options Company, in each case as contemplated in the Securities Purchase Agreement, (vii) Company may repurchase common stock of Company that constitutes odd lots pursuant to acquire any a program established by Company for the repurchase of such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new odd lots in an aggregate amount not to exceed $100,000, (viii) Company may purchase shares of its common stock;
DMG Common Stock from holders who have perfected their statutory appraisal rights, (ivix) redeem any Subsidiary may declare and pay dividends to Company or exchange, in whole or in part, any capital stock wholly-owned Subsidiary of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a wholeCompany, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange(x) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED that on the date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Y) the aggregate amount of any such Restricted Junior Payment, when added to the aggregate amount of all Restricted Junior Payments previously declared or (without duplication) paid by Borrower pursuant to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of cumulative Consolidated Net Income of Borrower Company and its Subsidiaries for the period commencing on the Closing Date and ending on the last day may purchase shares of the Fiscal Quarter most recently endedCapital Stock of any Subsidiary owned by professional engineers in connection with licensing requirements in an aggregate amount not to exceed $500,000.
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Samples: Credit Agreement (Urs Corp /New/)
Restricted Junior Payments. Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for Make any Restricted Junior Payment; PROVIDED that provided, however, that, so long as (i) it is permitted by law, and (ii) no Default or Event of Default or Potential Event of Default has shall have occurred and is be continuing or would be caused therebyresult therefrom,
(a) Parent may make distributions to former employees, Borrower may:officers, or directors of Parent (or any spouses, ex-spouses, or estates of any of the foregoing) on account of redemptions of Stock of Parent held by such Persons, provided that the aggregate amount of such redemptions made by Parent during the term of this Agreement does not exceed $500,000 in the aggregate,
(b) Parent may make distributions to former employees, officers, or directors of Parent (or any spouses, ex-spouses, or estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons owing to Parent on account of repurchases of the Stock of Parent held by such Persons; provided, that such Indebtedness was incurred by such Persons solely to acquire Stock of Parent,
(c) Parent and any of its Subsidiaries may make payment of cash in lieu of the issuance of fractional shares upon (i) repurchase shares the exercise of its capital stock or of any corporate parent (together with options or warrants in respect warrants, or (ii) the conversion or exchange of any thereof) held by present and former officers, directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreementsPerson’s Stock;
(iid) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(iii) purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire Parent may make any such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and provisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other Restricted Junior Payments; PROVIDED provided, however, that on Borrowers have (i) Availability (x) at all times during the 60 day period immediately before the effective date (the "DECLARATION DATE") of declaration of any dividend in respect of Borrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other each such Restricted Junior Payment pursuant to as evidenced by the terms of this clause (v)Borrowing Base Certificates delivered during such 60 day period, (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (Yy) the aggregate amount of any immediately after giving effect to each such Restricted Junior Payment, when added plus (ii) Qualified Cash (x) at all times during the 60 day period immediately before the effective date of each such Restricted Junior Payment, and (y) immediately after giving effect to each such Restricted Junior Payment, in an amount equal to or greater than $25,000,000 (of which at least $15,000,000 shall be in the form of Availability); and
(e) So long as it constitutes a non-cash transaction, Parent may make repurchases of Stock deemed to occur (i) upon the exercise of stock options to the aggregate amount extent such Stock represent a portion of all Restricted Junior Payments previously declared the exercise price of those stock options, and (ii) upon the withholding of a portion of the Stock granted or (without duplication) paid by Borrower pursuant awarded to this clause (v) during the period commencing on the Closing Date and ending on the Declaration Datea current or former officer, does not exceed 50% of cumulative Consolidated Net Income of Borrower and its Subsidiaries director, employee or consultant to pay for the period commencing on the Closing Date and ending on the last day of the Fiscal Quarter most recently endedtaxes payable by such Person upon such grant or award (or upon vesting thereof).
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Samples: Credit Agreement (Silicon Graphics International Corp)
