Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except: (i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party; (ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders; (iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof; (iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed); (v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof; (vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year; (vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c); (viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases; (ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith; (x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder; (xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock); (xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party; (xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Year.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (fuboTV Inc. /FL), Credit and Guaranty Agreement (FaceBank Group, Inc.)
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; PROVIDED that (i) Restricted Junior Payments 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 by Borrower the regularly scheduled interest payment due on August 1, 1999 in respect of the Subordinated Notes (subject to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
clause (ii) Borrower 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 declare make regularly scheduled payments of interest in respect of the Subordinated Indebtedness in accordance with the terms of, and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to the terms of subordination provisions contained in, the Existing Preferred Stock indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as in effect on such indenture or other agreement may be amended from time to time to the date hereof;
extent permitted under subsection 7.15B; and (iviii) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower Company may make Restricted Junior Payments to repurchase shares of Company Common Stock (or options or warrants to acquire Company Common Stock) from Management Investors in accordance with the ordinary course terms of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearthe Stockholders Agreement."
Appears in 2 contracts
Samples: Credit Agreement (Dictaphone Corp /De), Credit Agreement (Dictaphone Corp /De)
Restricted Junior Payments. No Credit Party shallHoldings shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by ; provided that any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or -------- make other distributions ratably to its equity holders;
(iii) Borrower may declare Company; and pay dividendsprovided further that, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no -------- ------- Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, (xi) regularly scheduled Company may make dividend payments in to Holdings on or immediately prior to April 15, 2003 for the form sole purpose of principal, allowing Holdings to make a one-time partial redemption of the extent provided for by, and Holdings Discount Debentures in accordance with, with the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment 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, immediately after giving effect to such payment, (I) the excess of the Revolving Loan Commitments over the aggregate principal amount of outstanding Revolving Loans shall be at least $10,000,000 and (II) Company delivers an Officer's Certificate demonstrating that the pro forma Consolidated Leverage Ratio after --- ----- taking into account the 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 Existing Notes as 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 fiscal period for which the calculations are being made and such distributions are included in effect on the date hereof;
Consolidated Fixed Charges, for purposes of calculation pursuant to subsection 7.6A; (viiii) so long as no Default or Event Company may make payments of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options regularly scheduled interest in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed Senior Subordinated Notes in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection accordance with the retention terms of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans and to the extent that net share settlement arrangements are deemed to be repurchases;
required by the Senior Subordinated Indenture; (ixiv) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower Company may make Restricted Junior Payments cash dividends to 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 ordinary course of its business in an aggregate amount not to exceed $350,000 250,000 in the aggregate in any Fiscal Year; and (v) Company may make 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 Tax Sharing Agreement. Notwithstanding anything to the contrary in this subsection 7.5, Company may make dividend payments to Holdings (A) on the Closing Date as necessary to consummate the Transactions and (B) after the Closing Date to satisfy payment of the working 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. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or Payment except that (ya) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower of Holdings may declare and pay dividends or make other distributions ratably to its equity holders;
holders (iii) Borrower 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 dividendsdividends pursuant to this Section 6.4(a) to any Person that is not a Credit Party), whether (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 Cash the ordinary course of business, (ii) pay franchise taxes and other Tax obligations or Common Stockfees 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 holders the extent such Taxes are attributable to Holdings and Subsidiaries of Existing Preferred Stock on 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, however that other than due to applicable law or regulation prohibiting the Existing Preferred Stock 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 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 of the Existing Preferred Stock as in effect on the date hereof;
thereof, (ive) so long as no Default or Event of Default shall have occurred both before and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or immediately after giving effect to such payment 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 to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have has occurred and be is continuing or shall be caused therebywould result therefrom, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower Holdings may make Restricted Junior Payments in an amount not in excess of the ordinary course Available Amount, (f) Holdings may pay dividends to the holders of business common stock of Holdings in any Fiscal Quarter in an aggregate amount not to exceed $350,000 0.25 per share for each such Fiscal Quarter (as such amount shall be appropriately adjusted for any 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 in an amount not to exceed 6.0% of the net cash proceeds from any public offering of the common stock of Holdings during such Fiscal Year, (h) no earlier than 12 months following the Second Amendment Effective Date and so long as (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) 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, share repurchases and/or dividends to the shareholders of Holdings in an aggregate amount during the term of 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 in an amount not in excess of $150,000,000 during the term of this Agreement.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Tronox LTD), Credit and Guaranty Agreement (Tronox LTD)
Restricted Junior Payments. No Credit Party shallThe Lessee shall not, nor and shall it not permit any of its Subsidiaries toSubsidiaries, directly or indirectly (x) indirectly, to declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment; provided, or (y) agree to declare, order, pay or that the Lessee may make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary mandatory prepayments of principal (including through the Existing Notesexercise of remedies) and payment of interest from time to time on Designated Indebtedness; and provided further, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereofthat, so long as no Default or Lease Event of Default exists before has occurred and is continuing, or after giving effect to such payment and to would result therefrom:
(1) the extent required by Lessee may prepay Designated Indebtedness from the terms proceeds of the Existing Notes as in effect on the date hereofPermitted Extension Indebtedness or Other Permitted Indebtedness;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b2) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower Lessee may make Restricted Junior Payments in the ordinary course of business with respect to its Common Stock in an aggregate amount not to exceed, in any fiscal year, the lesser of 20% of Consolidated Net Income for such fiscal year and $15 million;
(3) the Lessee may apply Equity Proceeds to prepay Designated Indebtedness;
(4) the Lessee may repurchase its Common Stock in an amount not to exceed $350,000 in any Fiscal Yearfiscal year $15 million for purposes of establishing or contributing to an employee benefit plan; provided, that any such repurchased Common Stock resold to employees of the Lessee shall, to the extent of the price paid for such Common Stock by such employee, be excluded from the calculation of the $15 million limit set forth above;
(5) the Lessee shall be permitted to consummate the Transaction; and
(6) 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 (A) after giving effect to the proposed repurchase or redemption, the Lessee shall have not less than $150,000,000 in Cash or Cash Equivalents on its balance sheet and (B) its Consolidated Leverage Ratio (calculated on a pro forma basis as if the proposed repurchase or redemption had been consummated on the last day of the most recent 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. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that Company may (i) Restricted Junior Payments made by Borrower to make regularly scheduled payments of interest in respect of any Credit PartySubordinated Indebtedness in accordance with the terms of, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to the terms of subordination provisions contained in, the Existing Preferred Stock indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as in effect on such indenture or other agreement may be amended from time to time to the date hereof;
extent permitted under subsection 7.11A, (ivii) (a) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, excluding the repurchases of Equity Interests described in clause (xb) regularly scheduled payments of this subsection 7.5, pay dividends on, repurchase or redeem its Equity Interests in an amount not to exceed the form amount of principal, Consolidated Excess Cash Flow for the immediately preceding Fiscal Year not otherwise required to be applied as a mandatory prepayment pursuant to subsection 2.4B(iii)(d); provided that the extent provided for by, and in accordance with, the terms Consolidated Leverage Ratio as of the Existing Notes in effect on last day of the date hereof Fiscal Quarter immediately preceding such payment, repurchase or redemption is less than 3.25:1.00 and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vib) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused therebywould result therefrom, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former repurchase its Equity Interests owned by directors, officersofficers and employees of Company or its Subsidiaries or make payments to directors, consultants, officers and employees of Company or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary its Subsidiaries upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon connection with the exercise of stock options options, stock appreciation rights or warrants if such Capital Stock represents a portion of the exercise price of such options similar equity incentives or warrants and (ii) make Restricted Junior Payments equity based incentives pursuant to management or other incentive plans or in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms death or disability of such convertible securities directors, officers and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business employees in an aggregate amount amount, together with principal payments on Indebtedness permitted pursuant subsection 7.1(ix), not to exceed $350,000 1,000,000 in any Fiscal YearYear and (iii) repay Subordinated Indebtedness (including the Senior Subordinated Notes) with the proceeds of other Subordinated Indebtedness permitted to be incurred pursuant to subsection 7.1(vi) or with the proceeds of Equity Interests of Company.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Skilled Healthcare Group, Inc.), Amendment and Restatement Agreement (Skilled Healthcare Group, Inc.)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or except (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iva) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) the Borrower may make regularly scheduled payments of interest in respect of Senior Unsecured Indebtedness in accordance with the form of principalterms of, and only to the extent provided for required by, and in accordance withthe indenture or other agreement pursuant to which any such Indebtedness was issued, the terms of the Existing Notes in effect on the date hereof and (yb) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) Borrower may make cash payments in respect connection with conversions of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, any convertible Indebtedness issued as in effect on the date hereof, permitted by Section 6.1(n) so long as (i) no Default or Event of Default exists before shall have occurred and be continuing or shall be caused thereby and (ii) 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, in each case, after giving effect to the subject Restricted Junior Payment and reaffirming that the representations and warranties made hereunder are true and complete in all material respects as of such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
date, (vic) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options make regularly scheduled payments of interest in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed Subordinated Indebtedness permitted hereby in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection accordance with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans terms of, and only to the extent that net share settlement arrangements are deemed required by, and subject to be repurchases;
(ix) the conversion of convertible securities (including warrantssubordination provisions contained in, options and convertible debt securities otherwise permitted under Section 6.1) into the indenture or other equity securities (other than Disqualified Stock) agreement pursuant to the terms of which such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreementwas issued, as applicable, to which the Administrative Agent is a party;
(xiiid) so 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 or retire for value any Equity Interests of Borrower or any Subsidiary 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) pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement or benefit plan of any 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 price protection agreements entered into with sellers under Prior Acquisitions and Permitted Acquisitions, (g) Borrower may make Restricted Junior Payments payments pursuant to the terms of Indebtedness incurred in connection with the settlement of Adverse Proceedings listed on Schedule 4.11, (h) Equity Interests surrendered to Borrower or its Subsidiaries in connection with any indemnification or withholding obligation, and (i) the Borrower may make cash payments in the ordinary course form of business cash settlements with respect to the Spread Overlay Agreements in an 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 not less than the amount not to exceed $350,000 in any Fiscal Yearof such distribution.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Hologic Inc), Credit and Guaranty Agreement (Hologic Inc)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly (x) declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior PaymentPayment 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 (yincluding, franchise taxes and other fees required to maintain its existence) agree 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 declarethe 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, order, pay or make so long as (A) Holdings applies the amount of any such Restricted Junior Payment or set apart for such purpose, and (B) the amount of such payments in respect of any sum for 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 Restricted Junior Payment, except:
(i) Restricted Junior Payments made such Taxes paid directly by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Partyits Subsidiaries);
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(ivb) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock repurchase, redeem or options in respect of Capital Stock from present otherwise acquire or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) retire for value any Equity Interests of Borrower or any Subsidiary upon the deathof its Subsidiaries held by any current or former officer, disability, retirement, severance, or termination of employment of such director, officer, consultant or employeeemployee 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 cash 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 payments made pursuant $2,500,000 in any calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of exceed:
(a) $500,000 plus (bi) the aggregate amountcash 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, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during received by Holdings and its Subsidiaries after the immediately preceding Fiscal YearClosing Date;
(viic) 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 Default or Event of Default shall have has occurred and be continuing or shall be caused therebyis continuing, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower Holdings and its Subsidiaries may (i) make other Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 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 arise after giving effect thereto and (ii) on a Pro Forma Basis the Borrower would be in compliance with Section 6.7 as of the last day of the most 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 or equal to 3.50:1.00; and
(h) Holdings and its Subsidiaries may make Restricted Junior Payments during any Fiscal YearSuspension Period.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Aeroflex Holding Corp.), Credit and Guaranty Agreement (Aeroflex Holding Corp.)
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary ; PROVIDED that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Potential Event of Default or Event of Default shall have occurred and be continuing or shall be caused therebywould occur as a result thereof (except in the case of Restricted Junior Payments permitted by subsections 7.5(i), (xiii), (v) and (vi) below):
(i) Company may (a) make payments of regularly scheduled payments interest in respect of the form of principalSenior Subordinated Bridge Notes and the Senior Subordinated Notes, to the extent provided for by, and in each case in accordance with, with the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment 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, (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 of 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 or otherwise acquire or retire for value any equity Securities of Parent, or any 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 to such payment, Company would be in compliance with subsection 7.6;
(v) the Existing Notes as Company shall be permitted to make payments in effect on respect of statutory appraisal rights (and any settlement thereof) exercised by holders of outstanding DAH Common Stock in connection with the date hereof;Merger; and
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower Company may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or make any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted Payment necessary in order to be made, but not made, pursuant to this Section 6.4(vi) during consummate the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments Tender Offer in connection accordance with the retention of Capital Stock Tender Offer Materials, the Merger in payment of withholding taxes in connection accordance with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities Merger Agreement and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal YearSecond Merger.
Appears in 2 contracts
Samples: Increased Commitments Agreement (Decrane Holdings Co), Credit Agreement (Audio International Inc)
Restricted Junior Payments. No Credit Party shall, Directly or indirectly through any manner or means nor shall it permit any of its Subsidiaries to, Affiliates directly or indirectly (x) through any manner or means, declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or Payment except that (ya) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) of the Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
the Borrower or any Wholly-Owned Subsidiary Guarantor; (iiib) the Borrower (i) may declare refinance the Indebtedness under the Second Lien Credit Agreement in accordance with the terms of the Intercreditor Agreement, (ii) may make regularly scheduled payments of interest in respect of any Indebtedness permitted by Section 6.01(c) or under the Second Lien Credit Agreement in accordance with the terms of, and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, the terms indenture governing such notes or the Second Lien Credit Agreement, as applicable, (iii) 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 retire any other outstanding Indebtedness permitted under Section 6.01(c) or (n) with the proceeds of the Existing Preferred Stock as Incremental Term Loans, and (v) may repurchase, repay, redeem, defease or retire any outstanding Indebtedness permitted under Section 6.01(c) or (n) in; provided that the aggregate amount not torepurchased, repaid redeemed, defeased or retired after the Restatement Effective Date in reliance on 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 on to the date hereof;
Restatement Effective Date Refinancing, (ivc) 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 to Holdings (xi) regularly scheduled payments in the form of principalan aggregate amount not to exceed $2,000,000 in any Fiscal Year, to the extent provided necessary to permit Holdings to pay general administrative costs and expenses incurred in the ordinary course of business, (ii) for by, so long as Holdings and in accordance with, the terms its Subsidiaries are members of the Existing Notes in effect on same affiliated group of corporations within the date hereof and (y) voluntary prepayments meaning of Section 1504 of the Existing Notes, subject to Internal Revenue Code and the prior approval Treasury Regulations promulgated thereunder (and any similar provision of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld state or delayed);
(vlocal income tax law) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and in accordance with, its Subsidiaries as part of such an affiliated group of which Holdings is the terms and conditions common parent within the meaning of Section 1504 of the Existing NotesInternal Revenue Code, as provided that such Restricted Junior Payment shall 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 effect on the date hereof, each case so long as no Default Holdings applies the amount of any such Restricted Junior Payment for such purpose, (iii) in an aggregate amount not to 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 $2,500,000 in any twelve-month period to permit Holdings to purchase common stock or Event common stock options of Default exists before Holdings from present or after giving effect to former officers or employees of Holdings or any of its Subsidiaries upon the death, disability or termination of employment of such payment officer or employee, and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vid) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business Payments, including payments to Holdings (and Holdings may distribute to its shareholders) (i) in an aggregate amount not to exceed $350,000 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 equal to 4.00:1.00 after giving effect thereto. For the avoidance of doubt, any Fiscal Yearrepurchase, repayment, redemption, defeasance or retirement of the Senior 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. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries (excluding the Excluded Entities) through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or make any Restricted Junior Payment pay, make, or set apart apart, or agree to declare, order, pay, make, or set apart, any sum for any Restricted Junior Payment, or Payment except:
(ya) agree the making of (i) Permitted Tax Payments and (ii) to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any the extent constituting a Restricted Junior Payment, except:
the payment of fees and expenses (ior the distribution of amounts used to pay such fees and expenses) Restricted Junior Payments made incurred by Borrower 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 Credit PartyFiscal Year; and (y) substantially contemporaneously with the Closing Date, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Partythe Transactions;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(ivb) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Restricted Junior Payments made solely in Capital Stock of a Parent Company (xother than Disqualified Capital Stock) regularly scheduled payments in the form shall be permitted so long as a Change of principal, Control does not occur after giving effect to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (any such approval not to be unreasonably withheld or delayed)Restricted Junior Payments;
(vc) Lead Borrower may make Restricted Junior Payments in cash payments to Global Parent in respect of accrued but unpaid interest 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) may make Restricted Junior Payments in cash to the extent expressly provided for by, and in accordance with, the terms and conditions direct or indirect holders of the Existing Notes, as in effect on the date hereofits Capital Stock, so long as (i) no Default or Event of Default exists before shall have occurred and be continuing or would immediately result therefrom, (ii) the Total Leverage Ratio, calculated as of the last day of such Subject Fiscal Quarter pursuant to the Compliance Certificate delivered in respect of such Subject Fiscal Quarter pursuant to Section 5.01(d), after giving pro forma effect to such Restricted Junior Payment, 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 Compliance Certificate delivered in respect of such Subject Fiscal Quarter pursuant to Section 5.01(d), after giving pro forma effect to such Restricted Junior 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 (B) 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) on a pro forma basis, after giving effect to such payment Restricted Junior Payment, Consolidated Liquidity is $30,000,000 or more and to (vi) the extent required by the terms of the Existing Notes as in effect on the date hereofprior two consecutive Fiscal Quarters were not Cure Quarters;
(vid) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock the repayment or options in respect prepayment of Capital Stock from present all or former directors, officers, consultants, any part of the principal on any Indebtedness owed by any Loan Party or employees (or any of their respective spousesSubsidiaries (excluding the Excluded Entities) to any of a Parent Company; provided, ex-spousesthat any interest, or estates) fees and expenses thereon may accrue so long as such interest, fees and expenses are not paid in cash until payment in full of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Yearall Obligations;
(viie) 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 on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed Global Parent to occur upon redeem, retire, purchase or otherwise acquire the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention shares of Capital Stock of the Lead Borrower issued or sold to Global Parent in payment 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 aggregate, the amounts paid to Lead Borrower by Global Parent in exchange for such shares of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;Capital Stock; and
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(xf) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xix) payments made using solely Common Stock of Borrower or made by Global Parent using the proceeds of, of any substantially concurrent cash capital contributions received by Global Parent from Ultimate Parent or in exchange for, (y) deemed made by Global Parent as a substantially contemporaneous issuance result of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make 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 be considered Curative Equity and shall be disregarded for purposes of 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 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 in the ordinary course of business in an aggregate amount and not to exceed $350,000 interfering in any Fiscal Yearrespect with the ordinary conduct of the business 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 Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment; 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 has occurred and is continuing or would result therefrom, Company may purchase Company’s common stock or common stock equity awards from present or former officers, directors or employees (or their respective spouses, successors, executors, estates, administrators or heirs) of Company or any Subsidiary of Company upon the death, disability, retirement or termination of employment of such officer, director or employee;
(iii) make Restricted Junior Payments with respect to (x) employee or director stock options, stock incentive plans or restricted stock plans of Company which are compensatory in nature and approved by the compensation committee of Company’s board of directors and (y) agree the purchase from time to declaretime by Company of its common stock (for not more than market price) with the proceeds of the exercise by grantees under any equity-based incentive plan;
(iv) make Restricted Junior Payments with respect to Company’s Capital Stock in exchange for, orderor out of the net cash proceeds of, pay or 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 set apart any sum for any warrants to the extent that such Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower Payment represents all or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Partyportion of the exercise price;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(ivvi) 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 by Company in respect of its Capital Stock; provided that after giving effect to any such Restricted Junior Payment, (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 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 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 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 caused therebyin 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) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Potential Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or continuing, (y) the Company and its Subsidiaries shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees Pro Forma Compliance and (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (bz) the aggregate amount, if any, of Restricted Junior Payments permitted Consolidated Leverage Ratio shall be less than 3.25 to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;1.00 on a Pro Forma Basis; and
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (iix) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement minority shareholders of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or Person that is acquired pursuant to a repurchase plan established substantially contemporaneously Permitted Acquisition or similar Investment permitted by subsection 7.3 pursuant to appraisal or dissenters’ rights or applicable law with the issuance respect to shares of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that Person held by such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearshareholders.
Appears in 2 contracts
Samples: Credit Agreement (Hexcel Corp /De/), Credit Agreement (Hexcel Corp /De/)
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment; provided that, or Company may, make Restricted Junior Payments to Holdings (yi) agree in an aggregate amount not to declareexceed $500,000 in any Fiscal Year, orderto the extent necessary to permit Holdings to pay general administrative costs and expenses, pay or make (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 (a) Holdings applies the amount of any such Restricted Junior Payment or set apart any sum for any such purpose and (b) the amount of such Restricted Junior PaymentPayment does not exceed the amount of the consolidated tax liabilities of Holdings that are attributable to the Company and the Company’s Subsidiaries, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, order for Holdings to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld repurchase or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect redeem outstanding shares of Capital Stock from present (or options to purchase Capital Stock) of Holdings owned by current or former directorsemployees, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) directors of Borrower Holdings or any Subsidiary upon the deathof its Subsidiaries pursuant to any management equity subscription agreement, disabilitystock option agreement or similar equity agreement, retirementshareholders agreement or benefit plan, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made all Restricted Junior Payments paid pursuant to this Section 6.4(visubclause (iii) during in any Fiscal Year shall not exceed $50,000 plus the amount of any net cash proceeds received by Holdings in such Fiscal Year from the aggregate the sum sale of (a) $500,000 plus (b) the aggregate amountCapital Stock of Holdings to any and all such employees, if anyofficers or directors that do not constitute an Excluded Issuance(it being understood, of Restricted Junior Payments however, that unused amounts permitted to be made, but not made, paid pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that proviso are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed Holdings available to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant carried over to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stocksubsequent Fiscal Years);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Year.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (SolarWinds, Inc.), Credit and Guaranty Agreement (SolarWinds, Inc.)
Restricted Junior Payments. No Credit Party shallHoldings and Company shall not, nor and shall it not permit any of its their Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that (i) Restricted Junior Payments made by Borrower to Holdings and its Subsidiaries may make regularly scheduled payments of interest in respect of any Credit PartySubordinated Indebtedness in accordance with the terms of, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to the terms of subordination provisions contained in, the Existing Preferred Stock indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as in effect on such indenture or other agreement may be amended from time to time to the date hereof;
extent permitted under subsection 7.10B, (ivii) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused therebywould result therefrom, (x) regularly scheduled payments in the form of principal, to the extent provided for byHoldings may make, and in accordance withCompany may make Restricted Junior Payments to Holdings sufficient to fund, any redemption or repurchase of Capital Stock that is required pursuant to the terms of the Existing Notes in effect on the date hereof and (yany “qualified stock bonus plan” under Section 401(a) voluntary prepayments of the Existing NotesInternal Revenue Code that complies in all material respects with the applicable provisions of Section 404, subject to the prior approval 409 and 415 of the Administrative Agent and Requisite Lenders Internal Revenue Code shall be permitted; provided that such repurchases shall not exceed $2,000,000 in any Fiscal Year, (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(viiii) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused therebywould result therefrom, Borrower may purchase Capital Stock Holdings and its Subsidiaries make any payment or options in respect prepayment of Capital Stock from present or former directorsprincipal of, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amountpremium, 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 Restricted Junior Payments 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 be madeat least the same extent as debt refinanced, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(viiiv) 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 Potential Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower Holdings and Company may (i) make additional Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and any Person (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrantsincluding, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of without limitation, any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower Vector Entity or any Subsidiary of Borrower may make Restricted Junior Payments in its Affiliates) after the ordinary course of business Closing Date in an aggregate amount amount, when taken together with payments made pursuant to subsection 7.8(viii), not to exceed $350,000 12,000,000 plus interest accruing thereon from and after the Closing Date at the applicable federal rate; provided, that all such Restricted Junior Payments made pursuant to this subsection 7.4(v) shall have been funded with amounts deposited in any Fiscal Yeara segregated account on the Closing Date.
Appears in 2 contracts
Samples: First Lien Credit Agreement (SafeNet Holding Corp), First Lien Credit Agreement (SafeNet Holding Corp)
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; PROVIDED that (i) Restricted Junior Payments made by Borrower Company may make scheduled payments of principal in respect of any Existing Senior Subordinated Notes not tendered pursuant to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party the Tender Offer and Restricted Junior Payments made by any Subsidiary that is which has not a Credit Party to any other Subsidiary that is not a Credit Party;
(iibeen defeased in accordance with subsection 7.5(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock Senior Subordinated Note Indenture, in each case in accordance with the terms of, and only to the extent required by by, and subject to the terms of subordination provisions contained in, the Existing Preferred Stock as in effect on the date hereof;
Senior Subordinated Note Indenture, and (ivii) so long as no Default or Event of Default shall have or Potential Event of Default has occurred and be is continuing or shall would be caused thereby, Company may:
(x1) regularly scheduled payments repurchase shares of its capital stock (together with options or warrants in the form respect of principalany thereof) held by officers, to the extent provided for bydirectors and employees of Company so long as such repurchase is pursuant to, and in accordance withwith 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;
(b) 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 Note Indenture or otherwise) no less favorable in any material respect to Company and Lenders than the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed)Tender Offer;
(vc) cash payments in respect of accrued but unpaid interest to repurchase, redeem, defease or otherwise ' prepay or retire the extent expressly provided for by, and in accordance withBridge Notes, the terms Conversion Notes and conditions of the Existing NotesRefinancing Sub Debt; PROVIDED that, as in effect on the date hereofeach case, so long as no Default or Event of Default exists before or after giving effect to such payment and to thereto the extent required by Available Amount Usage shall not exceed the terms of the Existing Notes as in effect on the date hereofAvailable Amount;
(vid) so long as no Default purchase, redeem or Event otherwise acquire shares of Default shall have occurred and be continuing common stock of Company or shall be caused thereby, Borrower may purchase Capital Stock warrants or options in respect to acquire any such shares with proceeds received by Company from substantially concurrent equity contributions or issuances of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) new shares of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Yearits common stock;
(viie) so long redeem or exchange, in whole or in part, any capital stock of Company for shares of another class of capital stock of 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 no Default a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or Event of Default shall have occurred and be continuing exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c)exchanged therefor;
(viiif) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options redeem or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital cancel Existing Preferred Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) Merger pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewithMerger Agreement;
(xg) 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 Company's outstanding capital stock pursuant to the terms of this clause (h) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (h), (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 deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
previously declared or (xiwithout duplication) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either paid by way of a substantially contemporaneous exchange or use of proceeds or Company pursuant to a repurchase plan established substantially contemporaneously with this clause (h) during the issuance period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of such Common Stock);
(xii) so long as no Default or Event cumulative Consolidated Net Income of Default shall have occurred Company and be continuing or shall be caused thereby, payments its Subsidiaries for the period commencing on account the Closing Date and ending on the last day of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal YearQuarter most recently ended.
Appears in 2 contracts
Samples: Credit Agreement (Alliance Imaging Inc /De/), Credit Agreement (Alliance Imaging Inc /De/)
Restricted Junior Payments. No Credit Party shallDirectly or indirectly, nor shall it declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, or permit any of its Material Subsidiaries to, through any manner or means or through any other Person to directly or indirectly (x) declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(ia) Restricted Junior Payments made by Borrower to any Credit Partywhen the Consolidated Leverage Ratio, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party both before and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment Restricted Junior Payment and any Debt incurred in connection therewith, is less than 2.0 to the extent required by the terms of the Existing Notes as in effect on the date hereof1.0;
(vib) so long as no Default Holdings may make Restricted Junior Payments to, purchase or Event redeem Equity Interests of Default shall have occurred and be continuing Holdings (including related stock appreciation rights or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from similar securities) (A) held by then present or former directors, officers, consultants, officers or employees (or their respective spouses, ex-spouses, or estates) of Borrower Holdings or any Subsidiary of its Subsidiaries or by any employee compensation and incentive arrangements upon the such person’s death, disability, retirement, severance, retirement or termination of employment or under the terms of any such directoremployee compensation and incentive arrangements or any other agreement under which such shares of stock or related rights were issued or (B) held by present or former officers, officer, consultant directors or employeeemployees of Holdings or any of its Subsidiaries at any time in order to provide liquidity to such officers in the ordinary course of business; provided that the aggregate cash amount of payments made pursuant to such purchases or redemptions under this Section 6.4(viclause (b) during any Fiscal Year 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 the aggregate the sum of connection with employee compensation and incentive arrangements and (ay) $500,000 plus third-party insurers under key-man life insurance policies that were not already applied under this clause (b)) the aggregate amountwhich, if anynot used in any year, may be carried forward to any subsequent fiscal year;
(c) repurchases of Restricted Junior Payments permitted to be made, but not madecommon stock of Holdings in open market transactions, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event existing stock repurchase program approved by the governing body of Default shall have occurred Holdings and be continuing or shall be caused therebyin effect on April 15, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business 2011 in an aggregate amount not to exceed $350,000 416,000,000;
(d) 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 Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests; and
(f) other Restricted Junior Payments made, in an aggregate amount not to exceed $100,000,000; provided, that, notwithstanding anything to the contrary foregoing, Holdings may pay dividends that were permitted under any Fiscal Yearprovision of Section 7.07(a) through (f) above at the time of declaration thereof if, at the time of such declaration, no Default shall have occurred and then be continuing.
Appears in 2 contracts
Samples: Credit Agreement (Western Digital Corp), Credit Agreement (Western Digital Corp)
Restricted Junior Payments. No Credit Party shallEach Borrower shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that (i) Restricted Junior Payments made Company may redeem the Existing Senior Notes as contemplated by Borrower to any Credit Partysubsection 4.1F(iv), Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower Company may declare 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 pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to the terms of subordination provisions contained in, the Existing Preferred Stock as in effect on the date hereof;
Subordinated Note Indenture, and (iviii) so long as no Default or Event of Default shall have or Potential Event of Default has occurred and be is continuing or shall would be caused thereby, Company may:
(xa) regularly scheduled payments repurchase shares of its capital stock (together with options or warrants in the form respect of principalany thereof) held by officers, to the extent provided for bydirectors and employees of Company so long as such repurchase is pursuant to, and in accordance withwith the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(b) repurchase, redeem, defease or otherwise prepay or retire any Existing Subordinated Notes not tendered pursuant to the Debt Tender Offer on terms (set forth in the Existing Subordinated Note Indenture or otherwise) no less favorable in any material respect to Company and Lenders than the terms of the Existing Notes 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;
(d) purchase, redeem or otherwise acquire shares of common stock of Company or warrants or options to acquire any such shares with proceeds received by Company from substantially concurrent equity contributions or issuances of new shares of its common stock;
(e) redeem or exchange, in effect whole or in part, any capital stock of Company for shares of another class of capital stock of Company or rights to acquire shares of such other class of capital stock; 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
(f) make other Restricted Junior Payments; provided that on the date hereof and (ythe "Declaration Date") voluntary prepayments of the Existing Notes, subject to the prior approval declaration of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments any dividend in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of Company's outstanding capital stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of this clause (f) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (f), (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 convertible securities and Restricted Junior Payment, when added to the payment aggregate amount of cash in lieu of fractional shares in connection therewith;
(x) all Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
previously declared or (xiwithout duplication) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either paid by way of a substantially contemporaneous exchange or use of proceeds or Company pursuant to a repurchase plan established substantially contemporaneously with this clause (f) during the issuance period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of such Common Stock);
(xii) so long as no Default or Event cumulative Consolidated Net Income of Default shall have occurred Company and be continuing or shall be caused thereby, payments its Subsidiaries for the period commencing on account the Closing Date and ending on the last day of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal YearQuarter most recently ended.
Appears in 2 contracts
Samples: Credit Agreement (Amphenol Corp /De/), Credit Agreement (NXS I LLC)
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment; 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, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptwould result therefrom:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower Company may prepay Designated Indebtedness from the proceeds of Permitted Extension Indebtedness or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit PartyOther Permitted Indebtedness;
(ii) Borrower Company may declare make Restricted Junior Payments with respect to Company Common Stock not to exceed in any Fiscal Year, the lesser of 20% of Consolidated Net Income for such Fiscal Year and pay dividends or make other distributions ratably to its equity holders$15 million;
(iii) Borrower Company may declare and pay dividendsrepurchase Company Common Stock in an amount not to exceed in any Fiscal Year $15 million for purposes of establishing or contributing to an employee compensation plan; provided that any such repurchased Company Common Stock resold to employees of Company shall, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred price paid for such Company Common Stock as in effect on by such employee, be excluded from the date hereofcalculation of the $15 million limit set forth above;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, Company may apply Equity Proceeds to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed)prepay Designated Indebtedness;
(v) cash payments in respect of accrued but unpaid interest Company and AFL III shall be permitted to consummate the extent expressly provided for by, and in accordance with, the terms and conditions AFL III Restructuring; and
(vi) Company may repurchase or redeem all or any portion of the Existing NotesSenior Notes for aggregate cash consideration not to exceed, when aggregated with any "change of control" put payments arising as in effect on a result of the date hereofHolding Company Reorganization, so long as no Default or Event of Default exists before or $75,000,000; provided that, (A) after giving effect to such payment the proposed repurchase or redemption, Company shall have not less than $150,000,000 in Cash or Cash Equivalents on its balance sheet and to (B) the extent required by Leverage Ratio (calculated on a pro forma basis as if the terms proposed repurchase or redemption had been consummated on the last day of the Existing Notes as in effect on the date hereof;
(vimost recent four fiscal quarter period) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate lower of 4.25:1.00 or the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted ratio required to be made, but not made, pursuant to this Section 6.4(vi) during met in accordance with subsection 6.6B for the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearsucceeding fiscal quarter end.
Appears in 2 contracts
Samples: Credit Agreement (Atlas Air Inc), Credit Agreement (Atlas Air Inc)
Restricted Junior Payments. No Credit Party shallHoldings and Company shall not, nor and shall it not permit any of its their Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that (i) Restricted Junior Payments made by Borrower to Holdings and its Subsidiaries may make regularly scheduled payments of interest in respect of any Credit PartySubordinated Indebtedness in accordance with the terms of, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to the terms of subordination provisions contained in, the Existing Preferred Stock indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as in effect on the date hereof;
such indenture or other agreement may be amended from time to time, (ivii) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused therebywould result therefrom, (x) regularly scheduled payments in the form of principal, to the extent provided for byHoldings may make, and in accordance withCompany may make Restricted Junior Payments to Holdings sufficient to fund, any redemption or repurchase of Capital Stock that is required pursuant to the terms of the Existing Notes in effect on the date hereof and (yany “qualified stock bonus plan” under Section 401(a) voluntary prepayments of the Existing NotesInternal Revenue Code that complies in all material respects with the applicable provisions of Section 404, subject to the prior approval 409 and 415 of the Administrative Agent and Requisite Lenders Internal Revenue Code shall be permitted; provided that such repurchases shall not exceed $2,000,000 in any Fiscal Year, (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(viiii) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused therebywould result therefrom, Borrower may purchase Capital Stock Holdings and its Subsidiaries make any payment or options in respect prepayment of Capital Stock from present or former directorsprincipal of, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amountpremium, 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 Restricted Junior Payments 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 be madeat least the same extent as debt refinanced, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(viiiv) 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 Potential Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower Holdings and Company may (i) make additional Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and any Person (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrantsincluding, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of without limitation, any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower Vector Entity or any Subsidiary of Borrower may make Restricted Junior Payments in its Affiliates) after the ordinary course of business Closing Date in an aggregate amount amount, when taken together with payments made pursuant to subsection 7.8(viii), not to exceed $350,000 12,000,000 plus interest accruing thereon from and after the Closing Date at the applicable federal rate; provided, that all such Restricted Junior Payments made pursuant to this subsection 7.4(v) shall have been funded with amounts deposited in any Fiscal Yeara segregated account on the Closing Date.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (SafeNet Holding Corp), Second Lien Credit Agreement (SafeNet Holding Corp)
Restricted Junior Payments. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptexcept that:
(ia) Restricted Junior Payments made by Borrower to Borrowers may make regularly scheduled payments of interest in respect of any Credit PartySenior Subordinated Notes in accordance with the terms of, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by the terms of Purchase Agreement, and subject to the Existing Preferred Stock as subordination provisions contained in effect on the date hereofSubordination Agreement;
(ivb) 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, (x) regularly scheduled payments in the form of principalan aggregate amount not to exceed $250,000 in any Fiscal Year, to the extent provided for by, necessary to permit Holdings to pay general administrative costs and in accordance with, the terms expenses and (ii) so long as any of the Existing Notes in effect on the date hereof Borrowers and/or any of their Subsidiaries is a partnership or disregarded entity for U.S. federal and (y) voluntary prepayments of the Existing Notesstate income tax purposes or is otherwise filing a consolidated or combined tax return with Holdings, subject to the prior approval extent necessary to permit Holdings to discharge any tax liabilities payable by Holdings, in each case so long as Holdings applies the amount of the Administrative Agent and Requisite Lenders (any such approval not to be unreasonably withheld or delayed)Restricted Junior Payment for such purpose;
(vc) cash payments in respect of accrued but unpaid interest to commencing with the extent expressly provided for byFiscal Year beginning January 1, 2007, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower Borrowers may purchase 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 or options in respect of Capital Stock Holdings from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, disability or other termination of employment of any such director, officer, consultant or employee; provided that the aggregate cash employee in an amount of payments made pursuant not to this Section 6.4(vi) during exceed $750,000 in any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(viid) 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 or shall be caused therebycontinuing, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make at the time of such Restricted Junior Payments in connection with Payment and after giving effect thereto, the retention sum of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ixA) the conversion amount, if any, by which (1) the Revolving Commitments exceed (2) the sum of convertible securities the Total Utilization of Revolving Commitments plus (including warrantsB) the aggregate amount of Cash and Cash Equivalents of Borrowers and their Subsidiaries at such time, options shall not be less than $5,000,000; and convertible debt securities otherwise permitted under Section 6.1(iii) into other equity securities (other than Disqualified Stock) pursuant after giving effect to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon 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 settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower Total Leverage Ratio or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreementSenior Leverage Ratio, as applicable, to which required at such time by Section 6.08 and (B) a pro forma Interest Coverage Ratio and pro forma Fixed Charge Coverage Ratio of at least 0.25x more than the Administrative Agent is a party;Interest Coverage Ratio or Fixed Charge Coverage Ratio, as applicable, required at such time by Section 6.08; and
(xiiie) so long as no Default or Event STT may dividend the Capital Stock of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not Statewide Publishing to exceed $350,000 in any Fiscal YearHoldings.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Prommis Solutions Holding Corp.), Credit and Guaranty Agreement (Prommis Solutions Holding Corp.)
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except; provided that Company may:
(i) Restricted Junior Payments made by Borrower make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms of, and only to any Credit Partythe extent required by, Restricted Junior Payments made by any Subsidiary and subject to Borrower the subordination provisions contained in, the indenture or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party agreement pursuant to any which such Subordinated Indebtedness was issued, as such indenture or other Subsidiary that is not a Credit Partyagreement may be amended from time to time to the extent permitted under subsection 7.12;
(ii) Borrower so long as no Event of Default has occurred and is continuing or would result therefrom, Company may declare and pay dividends purchase Company’s common stock or make other distributions ratably to its common stock equity holdersawards from present or former officers or employees of Company or any Subsidiary of Company upon the death, disability or termination of employment of such officer or employee;
(iii) Borrower may declare make Restricted Junior Payments with respect to (x) employee or director stock options, stock incentive plans or restricted stock plans of Company which are compensatory in nature and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required approved by the terms compensation committee of Company’s board of directors and (y) the purchase from time to time by Company of its common stock (for not more than market price) with the proceeds of the Existing Preferred Stock as in effect on the date hereofexercise by grantees under any equity-based incentive plan;
(iv) so long as no Potential Event of Default or Event of Default shall have has occurred and be is continuing at the time of such payment or shall be caused therebyimmediately after giving effect thereto, make payments of principal (and accrued and unpaid interest thereon) with respect to Subordinated Indebtedness; provided that (x) regularly scheduled 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 payments of principal (and accrued and unpaid interest thereof) and any incurrence of Indebtedness in the form of principal, to the extent provided for by, and in accordance withconnection therewith, the terms of the Existing Notes in effect on the date hereof Consolidated Leverage Ratio is less than 2.00 to 1.00 and (y) voluntary prepayments the amount by which (1) the Revolving Loan Commitment Amount exceeds (2) the Total Utilization of the Existing NotesRevolving Loan Commitments after giving effect to such Restricted Junior Payment, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval is not to be unreasonably withheld or delayed);less than $50,000,000; and
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Potential Event of Default or Event of Default exists before has occurred and is continuing at the time of such payment or immediately after giving effect thereto, other Restricted Junior Payments by Company in respect of its Capital Stock; 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 any such Restricted Junior Payment, 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 payment Restricted Junior Payment, is not less than $40,000,000 and to (z) the extent required by the terms aggregate amount of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options all Restricted Junior Payments in respect of its Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(viclause (v) during any Fiscal Year since the Closing Date 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 such Consolidated Excess Cash Flow to the aggregate extent the sum Consolidated Leverage Ratio is less than 2.00:1.00 at the end of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby), payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using but solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted amount is not applied to increase the limit under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearsubsection 7.8.
Appears in 2 contracts
Samples: Credit Agreement (Hexcel Corp /De/), Credit Agreement (Hexcel Corp /De/)
Restricted Junior Payments. No Credit Party shall, nor shall it Borrower will not and will not permit any of its Subsidiaries to, Subsidiary to directly or indirectly (x) declare, order, pay or pay, make any Restricted Junior Payment 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; (b) any redemption, conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of stock of Borrower or any Subsidiary now or hereafter outstanding; or (c) any payment made to retire, or (y) agree to declareobtain the surrender of, orderany outstanding warrants, pay options or make other rights to acquire shares of any Restricted Junior Payment class of stock of Borrower or set apart any sum for any Restricted Junior Payment, Subsidiaries now or hereafter outstanding except:
(i) Restricted Junior Payments made by Subsidiaries may make, declare and pay dividends and make other distributions with respect to their capital stock to the extent necessary to permit Borrower to any Credit Party, Restricted Junior Payments made by any or the Subsidiary who is the direct parent of such Subsidiary to pay the Obligations and to permit Borrower or and such parent to pay expenses (including general corporate expenses and management fees payable to Richmont Capital Partners I, L.P. in an amount not to exceed Five Hundred Thousand Dollars ($500,000) in any other Credit Party Fiscal Year) and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Partytaxes incurred in the ordinary course of business;
(ii) Borrower and the Subsidiaries may declare and pay dividends or make other distributions ratably to on its equity holderscommon stock payable solely in shares of common stock;
(iii) Borrower or a Subsidiary may declare repurchase its common stock or any warrants or options to purchase its common stock from its and pay dividendsthe Subsidiaries' officers and employees who received such stock or options from an employee stock option or ownership plan established by Borrower or a Subsidiary (including repurchases arising as a result of the death, whether disability or termination of any such officers and employees); provided that (a) the aggregate amount paid for such repurchases in Cash any Fiscal Year does not exceed Two Million Five Hundred Thousand Dollars ($2,500,000), (b) no Default exists or Common Stockwould result therefrom, (c) the average daily balances of the sum of Borrower's and the Subsidiaries' cash, cash equivalents and the Borrowing Availability for the thirty (30) day period prior to holders the date of Existing Preferred Stock the repurchase and calculated as if the repurchase had occurred on the Existing Preferred Stock to first (1st) day of such period, shall equal or exceed Ten Million Dollars ($10,000,000), (d) the extent required repurchase is permitted by the terms Indenture and (e) Borrower shall have provided Agent evidence of the Existing Preferred Stock as in effect its compliance with clauses (c) and (d) preceding on the date hereof;of the proposed repurchase; and
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock set apart and pay on or options in respect of Capital Stock from present or former directorsbefore March 31, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in 1999 an aggregate amount not to exceed Ten Million Dollars ($350,000 10,000,000) for the acquisition of its common stock (in any Fiscal Yearaddition to the amounts repurchased pursuant to Subsection 9.4 (iii)) if (a) no Default exists or would result therefrom, (b) such acquisition is permitted by the Indenture (with Borrower providing Agent evidence thereof on or prior to the date of each such acquisition under this clause (iv)) and (c) the average daily balances of the sum of Borrower's and the Subsidiaries' cash, cash equivalents and the Borrowing Availability for the thirty (30) day period prior to the date of the acquisition and calculated as if the acquisition had occurred on the first (1st) day of such period, shall equal or exceed Fifteen Million Dollars ($15,000,000).
Appears in 1 contract
Samples: Credit Agreement (Richmont Marketing Specialists Inc)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay The Borrowers will not declare or make any Restricted Junior Payment or set apart at any sum for any Restricted Junior Paymenttime; PROVIDED, or HOWEVER, that (ya) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower the Borrowers may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent 67 Guarantor in an amount equal to the state and federal income Taxes required to be paid by Guarantor and the terms Borrowers in respect of the Existing Preferred Stock as in effect on the date hereof;
Borrowers income for each fiscal year, (ivb) so long as as(i) no Default or Event of Default shall have occurred and be continuing or and no Default shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (yii) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or Fixed Charge Coverage Ratio after giving effect to such payment and equals or exceeds 1.25 to 1, the Borrowers may pay additional dividends to the extent required by Guarantor, (d) the terms Borrowers may make payments to the LLC in respect of the Existing Notes as in effect on principal and interest due under the date hereof;
$60MM Term Loan Facility; (vid) so long as no Default or Event of Default shall have occurred and be continuing or and no Default shall be caused therebytherein, Borrower the Borrowers may purchase Capital Stock or options make regularly scheduled payments of interest (but no payments of principal) in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon Subordinated Indebtedness on the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed dates and in the aggregate amounts set forth in the sum of applicable Subordinated Debt Documents; and (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(viie) so long as no Default or Event of Default shall have occurred at any time during the ninety day period preceding the date of payment and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as the Borrowers shall have delivered projections to the Agent demonstrating that no Default will result from such payment or Event is likely to occur within ninety days after the date of Default shall have occurred and be continuing or shall be caused therebysuch payment, the Borrowers may make payments on account of principal to Novamerican in respect of the Additional Novamerican Subordinated Indebtedness to with the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which prior written consent of the Administrative Agent is a party;
and the Required Lenders (xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearbe unreasonably withheld).
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay or make any Restricted Junior Payment or set apart any sum for Make any Restricted Junior Payment; provided, or (y) agree to declarehowever, orderthat, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Paymentso long as it is permitted by law, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused therebywould result therefrom,
(a) Parent (or any Subsidiary thereof which is not wholly-owned, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms directly or indirectly by Parent as of the Existing Notes in effect on the date hereof and (yClosing Date) voluntary prepayments of the Existing Notes, subject may make distributions to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directorsemployees, officers, consultants, or employees directors of any Loan Party (or their respective any spouses, ex-spouses, or estatesestates of any of the foregoing) on account of Borrower redemptions of Stock of Parent (or of any Subsidiary thereof which is not wholly-owned, directly or indirectly by Parent as of the Closing Date) held by such Persons, provided, however, that the aggregate amount of such redemptions made by Parent (or any Subsidiary upon thereof which is not wholly-owned, directly or indirectly by Parent as of the deathClosing Date), disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that plus the aggregate cash amount of payments made pursuant to this Section 6.4(viIndebtedness outstanding under clause (k) during any Fiscal Year shall of the definition of Permitted Indebtedness, does not exceed $1,000,000 in any twelve-month period; provided, that, (x) Parent and such Subsidiaries may carry over and make in subsequent twelve-month periods, in addition to the aggregate the sum of amounts permitted for such prior twelve-month period, any unutilized capacity under this clause (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted attributable to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
twelve-month period and (viiy) so long 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 no Default common equity capital, the cash proceeds from the sale of Stock of any of Parent’s direct or Event indirect parent companies, in each case to members of Default shall 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 occurred and be continuing or shall be caused thereby, payments on account not otherwise been applied to the making of Indebtedness incurred pursuant to Section 6.1(cany other payment permitted under this clause (a);
(viiib) Borrower Parent may make distributions to former employees, officers, or directors of any Loan Party (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise or any spouses, ex-spouses, or estates of stock options or warrants if such Capital Stock represents a portion any of the exercise price foregoing), solely in the form of forgiveness of Indebtedness of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans Persons owing to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments Parent on account of Subordinated Indebtedness to repurchases of the extent Stock of Parent held by such Persons; provided that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, Indebtedness was incurred by such Persons solely to which the Administrative Agent is a party;acquire Stock of Parent; and
(xiiic) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Each Subsidiary of Borrower Parent may make Restricted Junior Payments distributions and dividends to its parent entity; provided, that, if the parent entity of such Subsidiary is not a Loan Party, such distributions and dividends are promptly in the ordinary course of business in an aggregate amount not turn distributed and dividended to exceed $350,000 in any Fiscal Yeara Loan Party.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, None of the Borrower nor shall it permit any of its Subsidiaries to, directly or indirectly (xother than Foreign Subsidiaries) declare, order, pay shall declare or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or except (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:without duplication):
(i) Restricted Junior Payments made by dividends or distributions to the Borrower in respect of its Equity Interests in any of its wholly-owned Subsidiaries or to any Credit Party, Restricted Junior Payments made by of the Borrower's wholly-owned Subsidiaries from any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Partyof the Borrower;
(ii) Borrower regularly scheduled interest payments in respect of the Foamex/GFI Note, the New Foamex Subordinated Notes and the New Foamex Notes if such interest payments are permitted to be made pursuant to the terms of the New Foamex Subordinated Notes and the New Foamex Subordinated Note Indenture, or the New Foamex Notes and the New Foamex Indenture, as the case may declare and pay dividends or make other distributions ratably to its equity holdersbe;
(iii) Borrower may declare distributions to the Managing General Partner and pay dividends, whether the Limited Partner in Cash or Common Stock, respect of the Borrower's obligations (and not in excess of such obligations) under the Tax Sharing Agreement to holders of Existing Preferred Stock on which it is a party (A) in an amount necessary to permit Foamex International to service its debt obligations referred to in Section 9.04(v) (but only if such distributions are immediately repaid to the Existing Preferred Stock Borrower); (B) in an amount necessary to permit Foamex International to service its debt obligations referred to in Section 9.04(ix) (but only if such distributions are immediately repaid to the Borrower) and (C) to the extent the proceeds of such distributions shall be used to pay an actual tax liability of a partner or its beneficial owners; provided, however, if a payment otherwise required by the Tax Sharing Agreement not described in the foregoing clauses (A) and (B) is reduced because the distribution would not be used to pay an actual tax liability, the obligation of the Borrower to make such payment shall not be discharged but shall be suspended and made upon termination of this Agreement or subject to the terms of any refinancing of the Existing Preferred Stock as in effect on the date hereofObligations;
(iv) so long as no Default or Event of Default shall have or Potential Event of Default has occurred and be is continuing (or shall be caused therebywould result therefrom) and all payments due and payable by the Borrower under the Tax Sharing Agreement permitted under clause (iii)(C) above have been made, (x) regularly scheduled payments distributions to the Managing General Partner not in excess of $3,000,000 in the form of principal, aggregate in each Fiscal Year pursuant to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof Management Agreement and (y) voluntary prepayments Permitted Aircraft Payments; provided, however, that no such payment or other distribution in this clause (iv) may be made unless the Borrower shall have delivered a Compliance Certificate in respect of the Existing Notes, subject Fiscal Quarter ended just prior to the prior approval date of the Administrative Agent and Requisite Lenders proposed dividend or distribution demonstrating compliance with Article X on a pro forma basis (such approval not after giving effect to be unreasonably withheld or delayedall distributions permitted under this clause (iv));
(v) cash so long as no Event of Default or Potential Event of Default has occurred and is continuing (or would result therefrom), regularly scheduled interest payments in respect of accrued but unpaid the GW Subordinated Note if such interest payments are permitted to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect be made pursuant to such payment and to the extent required by the terms of the Existing Notes as in effect on GW Subordinated Note and the date hereofGW Subordination Agreement;
(vi) so long as no Default or Event of Default shall have or Potential Event of Default has occurred and be is continuing (or shall be caused therebywould result therefrom), dividends or distributions by the Borrower may purchase Capital Stock or options to its partners (A) in respect of Capital Stock from present each four fiscal quarter period in which the Total Net Debt to EBDAIT Ratio is less than 4.25:1.00 but greater than or former directorsequal to 3.50:1.00, officersan amount not to exceed the lesser of (I) 50% of the excess of Consolidated Net Income of the Borrower and its Subsidiaries (excluding, consultantshowever, or employees (or their respective spouses, ex-spouses, or estatesthose Subsidiaries which are not Subsidiary Guarantors) of Borrower or for such four fiscal quarter period over any Subsidiary upon the death, disability, retirement, severance, or termination of employment Permitted Aircraft Payments in respect of such directorfour fiscal quarter period (to the extent not subtracted from such Consolidated Net Income) and (II) $15,000,000 and (B) in respect of each four fiscal quarter period in which the Total Net Debt to EBDAIT Ratio is less than 3.50:1.00, officeran amount not to exceed to the lesser of (I) 50% of the excess of Consolidated Net Income of the Borrower and its Subsidiaries (excluding, consultant however, those Subsidiaries which are not the Subsidiary Guarantors) for such four fiscal quarter period over any Permitted Aircraft Payments (to the extent not subtracted from such Consolidated Net Income) and (II) $20,000,000; provided, however, that no such dividend or employee; provided other distribution may be made unless (A) the Borrower shall have delivered to the Administrative Agents a certificate in form and substance acceptable to the Administrative Agents signed by the chief financial officer of the Borrower that the Borrower had a pro forma Fixed Charge Coverage Ratio for the four fiscal quarter period ended just prior to the proposed dividend or distribution of at least 1.15:1.00 (after giving effect to such proposed dividend or distribution), (B) the Borrower shall have delivered a Compliance Certificate in respect of the four fiscal quarter period ended just prior to the date of the proposed dividend or distribution demonstrating compliance with Article X on a pro forma basis (after giving effect to such proposed dividend or distribution), (C) the aggregate cash amount of dividends or other distributions pursuant to this clause (vi) made during the preceding 365-day period just ended prior to the date of the payment of the proposed dividend or distribution shall not exceed the aggregate amount of payments of Term Loans made in respect of such preceding 365-day period just ended pursuant to this Section 6.4(viSections 3.01(a), (b)(ii), (b)(iii), (b)(iv) during any Fiscal Year shall not exceed in the aggregate the sum of and (ab)(v) $500,000 plus and (bD) the aggregate amountBorrower has delivered the financial statements and Compliance Certificate required by Sections 7.01(a), if any, 7.01(c) and 7.01(d)(ii) in respect of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Yearsuch fiscal period;
(vii) so long payments made to Foamex International to purchase materials pursuant to, and as no Default or Event defined in, the Foamex International Supply Agreement, provided that (a) the Borrower shall not make any payment to Foamex International to purchase any materials prior to receipt by the Borrower of Default shall title to such materials, and (B) any amounts paid to Foamex International in excess of the purchase price and reasonable expenses which the Borrower would have occurred and be continuing or paid had it purchased such materials directly from the supplier of such materials shall be caused thereby, payments on account of Indebtedness incurred deemed to be a Restricted Junior Payment made pursuant to Section 6.1(c9.06(vi);; and
(viii) Borrower may (iA) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon as permitted by the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants Amendatory Agreement and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xiiB) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Potential Event of Default shall have has occurred and be is continuing (or shall be caused thereby, Borrower or any Subsidiary of would result therefrom) the Borrower may make Restricted Junior Payments in the ordinary course of business pay a dividend on its Equity Interests in an aggregate amount not to exceed $350,000 in any Fiscal Year3,000,000 on or prior to the 90th day following the Effective Date.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except; provided that Company may:
(i) Restricted Junior Payments made by Borrower make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms of, and only to any Credit Partythe extent required by, Restricted Junior Payments made by any Subsidiary and subject to Borrower the subordination provisions contained in, the indenture or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party agreement pursuant to any which such Subordinated Indebtedness was issued, as such indenture or other Subsidiary that is not a Credit Partyagreement may be amended from time to time to the extent permitted under subsection 7.12;
(ii) Borrower may declare on the Closing Date and pay dividends or on the Final Redemption Date, make other distributions ratably Restricted Junior Payments to its equity holdersfund the Recapitalization as contemplated by this Agreement;
(iii) Borrower so long as no Event of Default has occurred and is continuing or would result therefrom, Company may declare and pay dividendspurchase Company’s common stock or common stock options from present or former officers or employees of Company or any Subsidiary of Company upon the death, whether in Cash disability or Common Stock, to holders termination of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms employment of the Existing Preferred Stock as in effect on the date hereofsuch officer or employee;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, prior to the extent provided for byFinal Redemption Date, pay accrued and unpaid interest on the Existing Senior Subordinated Notes and Existing Convertible Subordinated Debentures in accordance with, with the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed)thereof;
(v) cash payments make Restricted Junior Payments with respect to (x) employee or director stock options, stock incentive plans or restricted stock plans of Company which are compensatory in respect nature, made in the ordinary course of accrued but unpaid interest business and consistent with the past practices of Company and (y) the purchase from time to time by Company of its common stock (for not more than market price) with the extent expressly provided for by, and in accordance with, the terms and conditions proceeds of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required exercise by the terms of the Existing Notes as in effect on the date hereofgrantees under any equity-based incentive plan;
(vi) so long as no Potential Event of Default or Event of Default shall have has occurred and be is continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon at the death, disability, retirement, severance, or termination of employment time of such directorpayment or immediately after giving effect thereto, officer, consultant or employeemake payments of principal (and accrued and unpaid interest thereon) with respect to Subordinated Indebtedness; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (bx) the aggregate amountCompany 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 payments of principal (and accrued and unpaid interest thereof) and any incurrence of Indebtedness in connection therewith, if any, the Consolidated Leverage Ratio is less than 2.00 to 1.00 and (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 Payments permitted to be madePayment, but is not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Yearless than $50,000,000;
(vii) (x) convert Preferred Stock into common stock of the Company pursuant to the terms of the Preferred Stock Certificates of Designation and (y) after March 19, 2006, make a cash payment to the holder of each share of Series A Preferred Stock in amount equal to such share’s Conversion Payment (as such term is defined in the Series A Certificate of Designation) to the extent required by Section 9(b) of the Series A Certificate of Designation; and
(viii) so long as no Potential Event of Default or Event of Default shall have has occurred and be is continuing at the time of such payment or shall be caused therebyimmediately after giving effect thereto, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make other Restricted Junior Payments on by Company in respect of its Capital Stock Stock; provided that are deemed (x) the Company shall have provided to occur upon Administrative Agent a pro-forma Compliance Certificate certified by the exercise Chief Financial Officer of stock options or warrants if Company and demonstrating that after giving effect to any such Capital Stock represents a portion Restricted Junior Payment, 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 the exercise price of Revolving Loan Commitments after giving effect to such options or warrants Restricted Junior Payment, is not less than $50,000,000 and (iiz) make the aggregate amount of all Restricted Junior Payments in connection with the retention respect of its Capital Stock in payment made pursuant to this clause (viii) since the Closing Date shall not exceed $20,000,000 plus the sum of withholding taxes in connection with equity-based compensation plans (1) 17% of Consolidated Net Income of Company for the Fiscal Quarter ending March 31, 2005 and (2) an amount equal to 50% of Consolidated Net Income of Company for the period (taken as one accounting period) from April 1, 2005 to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion end of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) Company’s most recently ended Fiscal Quarter for which financial statements have been delivered pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stocksubsection 6.1(ii);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Year.
Appears in 1 contract
Samples: Credit Agreement (Hexcel Corp /De/)
Restricted Junior Payments. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries (excluding the Excluded Entities) through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or make any Restricted Junior Payment pay, make, or set apart apart, or agree to declare, order, pay, make, or set apart, any sum for any Restricted Junior Payment, or Payment except:
(ya) agree the making of (i) Permitted Tax Payments and (ii) to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any the extent constituting a Restricted Junior Payment, except:
the payment of fees and expenses (ior the distribution of amounts used to pay such fees and expenses) Restricted Junior Payments made incurred by Borrower 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 Credit PartyFiscal Year; and (y) substantially contemporaneously with the Closing Date, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Partythe Transactions;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(ivb) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Restricted Junior Payments made solely in Capital Stock of a Parent Company (xother than Disqualified Capital Stock) regularly scheduled payments in the form shall be permitted so long as a Change of principal, Control does not occur after giving effect to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (any such approval not to be unreasonably withheld or delayed)Restricted Junior Payments;
(vc) Lead Borrower may make Restricted Junior Payments in cash payments to Global Parent in respect of accrued but unpaid interest any Fiscal Quarter (a “Subject Fiscal Quarter”) following the first full Fiscal Quarter ending after the Liberty Joinder Date, and concurrently therewith Global Parent (and any direct or indirect parent thereof) may make Restricted Junior Payments in cash to the extent expressly provided for by, and in accordance with, the terms and conditions direct or indirect holders of the Existing Notes, as in effect on the date hereofits Capital Stock, so long as (i) no Default or Event of Default exists before shall have occurred and be continuing or would immediately result therefrom, (ii) the Total Leverage Ratio, calculated as of the last day of such Subject Fiscal Quarter pursuant to the Compliance Certificate delivered in respect of such Subject Fiscal Quarter pursuant to Section 5.01(d), after giving pro forma effect to such Restricted Junior Payment, 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 Compliance Certificate delivered in respect of such Subject Fiscal Quarter pursuant to Section 5.01(d), after giving pro forma effect to such Restricted Junior 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 (B) 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) on a pro forma basis, after giving effect to such payment Restricted Junior Payment, Consolidated Liquidity is $30,000,000 or more and to (vi) the extent required by the terms of the Existing Notes as in effect on the date hereofprior two consecutive Fiscal Quarters were not Cure Quarters;
(vid) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock the repayment or options in respect prepayment of Capital Stock from present all or former directors, officers, consultants, any part of the principal on any Indebtedness owed by any Loan Party or employees (or any of their respective spousesSubsidiaries (excluding the Excluded Entities) to any of a Parent Company; provided, ex-spousesthat any interest, or estates) fees and expenses thereon may accrue so long as such interest, fees and expenses are not paid in cash until payment in full of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employeeall Obligations; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;and
(viie) 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 on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed Global Parent to occur upon redeem, retire, purchase or otherwise acquire the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention shares of Capital Stock of the Lead Borrower issued or sold to Global Parent in payment 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 aggregate, the amounts paid to Lead Borrower by Global Parent in exchange for such shares of withholding taxes in connection with equity-based compensation plans Capital Stock. provided that, notwithstanding anything to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrantscontrary contained herein, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) no event shall any Loan Party make any Restricted Junior Payments deemed to occur upon Payment that results in the settlement transfer of ownership (directly or indirectly) of any Swap Agreements not otherwise prohibited hereunder;
Material Intellectual Property (xi) payments made using solely Common Stock except for non-exclusive licenses of Borrower or made using the proceeds ofpatents, or in exchange fortrademarks, a substantially contemporaneous issuance of Common Stock of Borrower (either and other intellectual property rights granted by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower Loan Party or any Subsidiary of Borrower may make Restricted Junior Payments its Subsidiaries in the ordinary course of business in an aggregate amount and not to exceed $350,000 interfering in any Fiscal Yearrespect with the ordinary conduct of the business 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 1 contract
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that (i) Company may issue Management Notes; -------- (ii) Company may pay Cash interest or make Cash payments of principal on the Management Notes and may purchase for Cash a member of Company's management's interests in the Trusts (or successor entities of the Trusts) in an aggregate amount for all such payments or purchases not to exceed $10,000,000 provided -------- that such Cash Restricted Junior Payments made by Borrower shall not exceed (A) $1,000,000 in the aggregate for any one Fiscal Year so long as the Consolidated Leverage Ratio for the four Fiscal Quarter period for which the most recent Margin Determination Certificate has been delivered pursuant to subsection 6.1(iv) exceeds 2.50:1.00 or (B) $2,000,000 in the aggregate for any Credit Partyone Fiscal Year so long as Consolidated Leverage Ratio is less than or equal to 2.50:100; provided, Restricted Junior Payments made by further -------- that any Subsidiary portion of the amount permitted pursuant to Borrower or the foregoing clause (B) together with any other Credit Party and Restricted Junior Payments made by any Subsidiary that amount carried forward from a prior year which is not utilized for such purpose in a Credit Party given Fiscal Year may be carried over to any other Subsidiary that is not the subsequent Fiscal Year up to a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably maximum amount so carried forward to its equity holders;
such subsequent Fiscal Year of $2,000,000; (iii) Borrower Company may declare make distributions to BSH Holdings or SIG Holdings and BSH Holdings and SIG Holdings may make distributions to BSH Trust or SIG Trust in an amount not to exceed the amount necessary for such Person to pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock Taxes imposed on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
such Person when due; (iv) so long as no Default Company may make distributions to BSH Holdings or Event of Default shall have occurred SIG Holdings and be continuing BSH Holdings and SIG Holdings may make distributions to BSH Trust or shall be caused thereby, (x) regularly scheduled payments SIG Trust in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval an annual amount not to be unreasonably withheld or delayed);
exceed $100,000 for the purpose of paying general operating expenses of Holdings and the Trusts; and (v) cash payments Company may make distributions in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount1999 to Xxxxxxx X. Xxxxxxx, if anyXxxxxx Xxxxxxxx, of Restricted Junior Payments permitted to be madeXxxxxxxx Xxxx, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred Xxxxx Pinchanski and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business Xxxxx Xxxxxxxx in an aggregate amount not to exceed $350,000 in any Fiscal Year3,000,000.
Appears in 1 contract
Samples: Credit Agreement (Digitas Inc)
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its respective Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that (i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
Company may make scheduled interest payments in respect of the Subordinated Notes in accordance with the terms of the Subordinated Note Indenture; (ii) Borrower Company may declare make scheduled interest and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether principal payments in Cash or Common Stock, to holders respect of Existing Preferred Stock on the Existing Preferred Stock to the extent required Seller Note and any Permitted Seller Notes permitted by subsection 7.1(viii) in accordance with the terms of the Existing Preferred Seller Note and such Permitted Seller Notes; (iii) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing 104 or shall be caused thereby, 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 Company Common Stock as from officers, directors or employees of Company or any of its Subsidiaries following termination of employment of any such officer, director or employee by reason of death, disability, retirement or resignation or following other events customarily requiring or permitting such repurchase, in effect on each case in accordance with the date hereof;
terms of customary terms of management and/or employee stock plans, stock subscription agreements or shareholder agreements entered into with officers, directors or employees of Company or any of its Subsidiaries; (iv) 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 repurchase Company Preferred Stock and make payments of accrued and unpaid dividends to the holders of Company Preferred Stock, provided that in no event may Company pay any dividend on or repurchase Company Preferred Stock unless both (x) regularly scheduled payments in the form of principal, to Leverage Ratio for the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof most recently ended four-Fiscal Quarter period does not exceed 2.0:1.0 and (y) voluntary prepayments at least 50% of the Existing Notes, subject to the prior approval initial aggregate principal amount of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal YearTerm Loans has been repaid.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay will declare or make any Restricted Junior Payment or set apart at any sum for any Restricted Junior Paymenttime; provided, or (y) agree to declarehowever, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:that
(ia) Restricted Junior Payments made by Borrower with respect to any Credit Partyperiod during which Holdings is an S Corporation or a substantially similar pass-through entity for federal income tax purposes and a QSSS Election is in effect for the Borrower, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) the Borrower may declare and pay dividends or make other distributions ratably dividend payments to its equity holdersMedia Holdings in an amount (together with loans made pursuant to Section 7.5(m)(i)) not in excess of the Permitted Holdings Tax Distributions and the Permitted Shareholder Tax Distributions;
(iiib) the Borrower may declare make the Qualifying IPO Funding Transaction payments or make dividends to Holding Companies in amounts to permit Holding Companies to make Qualifying IPO Funding Transaction payments (provided that the aggregate amount of such payments together with payments made pursuant to Section 7.5(m)(vi) shall not exceed the aggregate amount of permitted Qualifying IPO Funding Transaction payments);
(c) the Borrower may make scheduled payments of interest on (i) the Senior Subordinated Notes to the extent required to be paid in cash pursuant to the Senior Subordinated Note Indenture, and pay dividends, whether in Cash or Common Stock, subject to holders of Existing Preferred Stock on the Existing Preferred Stock applicable subordination terms thereof and (ii) other Subordinated Indebtedness permitted to be incurred under Section 7.1(m) to the extent required by the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, and subject to the applicable subordination terms of the Existing Preferred Stock as in effect on the date hereofthereof;
(ivd) the Borrower may declare and make dividends (together with loans made pursuant to Section 7.5(m)(ii)) to Media Holdings in an amount equal to the scheduled payments of interest on the Media Holdings Discount Notes to the extent required to be paid in cash pursuant to the Media Holdings Discount Notes Indenture, and subject to the applicable subordination terms thereof, provided that, in any fiscal year, the aggregate amount paid pursuant to this clause (d) during such fiscal year (together with the aggregate amount of loans made pursuant to Section 7.5(m)(ii) during such fiscal year), shall not exceed the aggregate amount of scheduled payments of interest on the Media Holdings Discount Notes to the extent required to be paid in cash on or after October 15, 2008 pursuant to the Media Holdings Discount Notes Indenture during such fiscal year (for the avoidance of doubt any cash interest payments which may become due prior to October 15, 2008 as a result of any election to make cash interest payments with respect to the Media Holdings Discount Notes shall not be deemed to be “required to be paid in cash,” for the purposes of Sections 7.5 and 7.6);
(e) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Borrower may make dividends (together with loans made pursuant to Section 7.5(m)(iii)) to any Holding Company in an amount equal to the scheduled payments of interest on Holding Company Debt incurred in accordance with Section 7.15(a)(iv) to the extent required to be paid in cash pursuant to the documentation governing such Holding Company Debt, provided, that, in any fiscal year, the aggregate amount of dividends made pursuant to this clause (e) during such fiscal year (together with the amount of loans made pursuant to Section 7.5(m)(iii) during such fiscal year) shall not exceed the aggregate amount of scheduled payments of interest on such Holding Company Debt to the extent required to be paid in cash during such fiscal year;
(f) the Borrower may make Restricted Junior Payments, in order for the Borrower or a Holding Company, as the case may be, to (i) redeem, repurchase or otherwise acquire the Alta Notes, the Senior Subordinated Notes and/or the Media Holdings Discount Notes in open market transactions or otherwise (including redemptions); (ii) redeem, repurchase or otherwise acquire Holdings’ capital stock in open market transactions or otherwise (including redemptions) and/or (iii) pay dividends or other distributions to any holders of the capital stock of Holdings; provided that in the case of each payment under this clause (f): (x) regularly scheduled payments in the form of principalno Default shall have occurred and be continuing or be caused thereby, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notesafter giving effect to any such payment, subject (1) prior to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance withQualifying IPO Closing Date, the terms and conditions of the Existing Notes, as in effect Total Leverage Ratio (on the date hereof, so long as no Default or Event of Default exists before or a pro forma basis after giving effect to such payment payment) is less than 5.00 to 1 and (2) thereafter, the Total Leverage Ratio (on a pro forma basis after giving effect to such payment) is 1.0x lower than the maximum Total Leverage Ratio at such time required under Section 7.10(a), in the case of each of clauses (1) and (2) for the fiscal quarter most recently completed at such time as set forth in a certificate of a Financial Officer certifying as to and providing a reasonably detailed calculation of the same after giving effect to such Restricted Junior Payment together with the financial statements required to be delivered by Section 6.1(b) and (z) the Senior Leverage Ratio on a pro forma basis after giving effect to the extent required by payment of any such Restricted Junior Payment (and the terms Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer certifying as to and providing a reasonably detailed calculation of such Senior Leverage Ratio after giving effect to the payment of such Restricted Junior Payment) shall not, in the case of any of the Existing Notes as in effect on the date hereofforegoing payments, exceed 5.00 to 1;
(vig) so long as no Default shall have occurred and be continuing or Event shall be caused thereby the Borrower may declare and make Restricted Junior Payments to any Holding Company to pay corporate administrative expenses and other costs and expenses; provided that the amount of cash distributions made pursuant to this clause (g) (together with the amount of loans made pursuant to Section 7.5(m)(iv)) shall not exceed (i) prior to the Qualifying IPO Closing Date, $1,500,000 and (ii) thereafter, $5,000,000, in each case, in any fiscal year;
(h) the Credit Parties may pay their obligations to Empire Burbank to the extent required to be paid under the Empire Burbank Lease;
(i) so long as no Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultantsLBCI, or employees any successor entity thereto, may make the payments described in clause (or their respective spouses, ex-spouses, or estatesvi) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, definition of Restricted Junior Payments permitted Payment or make the payments with respect to be made, but not made, pursuant to this Section 6.4(vi) during any notes issued under the immediately preceding Fiscal Yearemployment agreement described in such clause (vi);
(viij) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, any Credit Party may make dividend payments on account to Holdings (through another Holding Company, if applicable), to enable Holdings to make the payments with respect to any portion of Indebtedness incurred the “Incentive Bonus” which may become payable pursuant to the employment agreements of Winter Xxxxxx dated December 18, 2002, Xxxxxx Mars dated November 15, 1998, and Xxxxxx Xxxxx dated September 1, 1999, in each case as amended from time to time, respectively, or with respect to any notes issued with respect thereto; provided that the aggregate amount of such dividends (together with the aggregate amount of loans made pursuant to Section 6.1(c7.5(m)(v);) shall not exceed the amount of such bonuses required to be paid under such employment agreements (including any amounts required to be paid under any such notes); and
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xiik) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Borrower may make payments of interest on account of the Xxxxxxxx Subordinated Indebtedness Debt to the extent that such payments of interest are permitted to be made under the Xxxxxxxx Subordination Agreements. Nothing herein shall be deemed to prohibit the making of any intercreditor agreement dividend or subordination agreementdistribution, or other payment constituting a Restricted Junior Payment under clauses (ii) or (iii) of the definition thereof by any Subsidiary to any Credit Party. Notwithstanding anything herein to the contrary, if part or all of a Permitted Holdings Tax Distribution or a Permitted Shareholder Tax Distribution is made in the form of a loan (rather than a dividend or other form of distribution), then (i) the terms of such loan shall be determined in the sole discretion of the Borrower, and (ii) the subsequent cancellation or forgiveness of such loan shall not be treated as applicablea Restricted Junior Payment and shall not reduce the amount of subsequent Permitted Holdings Tax Distributions or Permitted Shareholder Tax Distributions. Notwithstanding anything in this Agreement or any of the other Loan Documents (including the Alta Subordination Agreement and the Investor Subordination Agreement) to the contrary, each Agent and each Lender hereby consents to which (i) the Assumption Agreement, the Reaffirmation Agreement, the Stockholder Voting Agreement, the Termination Agreement, the Election[s] to Purchase, the Irrevocable Instructions, the Conversion Election[s], the Holdings Merger Agreement, the Holdings Merger, the Qualifying IPO, and the Qualifying IPO Funding Transactions and to the execution, delivery and performance by the Administrative Agent is a party;
(xiiifor itself and on behalf of the Lenders) so long as no Default of the Second Confirmation of Subordination Agreements, the Third Confirmation of Subordination Agreements, the Omnibus Confirmation Agreement and the Second Omnibus Confirmation Agreement, and (ii) the payments permitted under the last paragraph of Section 2.11(b), and nothing herein or Event of Default shall have occurred and be continuing or therein shall be caused therebydeemed to prohibit any payments described in clauses (a), Borrower (c) or, subject to the subordination provisions of the Senior Subordinated Note Indenture, (e) of the definition of Qualifying IPO Funding Transactions made within fifteen months after the consummation of the Qualifying IPO. Notwithstanding anything in this Agreement or any Subsidiary of Borrower may the other Loan Documents to the contrary, with respect to any period during which Holdings is not an S Corporation or a substantially similar pass-through entity for federal income tax purposes, any Credit Party will be permitted to make Restricted Junior Payments payments to any other Credit Party or any Holding Company to permit such other Credit Party or such Holding Company to pay any federal, state or local tax liability of any Credit Party or any federal, state or local tax liability of any Holding Company attributable to the Credit Parties (including tax liabilities determined under Section 1552 of the Code and the consolidated return regulations promulgated under the Code); provided that any amount, not used to pay such tax liability, and refunds which are received by any Holding Company which are attributable to any Credit Party or otherwise attributable to the amounts so distributed shall be returned promptly by such Holding Company to the Credit Parties. Neither Section 7.5 nor this Section 7.6 shall prohibit any payment permitted to be made by the last paragraph of Section 2.11(b) or any loan or dividend to Media Holdings promptly applied in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearmanner contemplated thereby.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shallSouthland shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay declare or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments payments due on Subordinated Indebtedness and permitted to be made by Borrower pursuant to any Credit Partythe terms of such Subordinated Indebtedness, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Partyrepayment of Subordinated Indebtedness from the proceeds of new Subordinated Indebtedness;
(ii) Borrower may declare and pay any dividends or make distributions to Southland on the capital stock of any of its Subsidiaries or from any of such Subsidiaries to any other distributions ratably to its equity holdersof such Subsidiaries;
(iii) Borrower so long as 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 declare repurchase or redeem its Senior Subordinated Debentures, PROVIDED that such repurchases and pay dividends, whether in Cash redemptions shall be made with the proceeds of Common Stock or Common Stock, to holders of Existing Preferred Stock on Subordinated Indebtedness issued after the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereofEffective Date;
(iv) so long as no Default or there does not exist an Event of Default shall have occurred and be continuing or shall be caused therebyPotential Event of Default, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest the repurchase of capital stock of Southland arising from an election by Southland to the extent expressly provided pay a "Benefit" for by"Value" pursuant to Section 9 of Southland's Equity Participation Plan or otherwise required or permitted pursuant to agreements with employees of Southland, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, retirement or termination of employment of such directoremployees, officer, consultant or employee; provided that the aggregate cash amount which payments (including payments on Indebtedness of payments made pursuant to this Section 6.4(viSouthland arising from any such election under its Equity Participation Plan) during any Fiscal Year shall not exceed in the aggregate exceed $2,000,000 per annum, PLUS the sum amount of (a) $500,000 plus (b) consideration paid by the aggregate amount, if any, purchasers of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Yearsuch capital stock upon its issuance or reissuance by Southland;
(viiv) so long as no Default or there does not exist an Event of Default shall have occurred or Potential Event of Default, dividends payable in kind, but not in cash, on any class or series of Southland's preferred stock and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not in excess of $500,000) in lieu of the issuance of fractional shares; and
(vi) the payments described in CLAUSES (1) and (2) of SECTION 8.01(xiv)(B) with respect to exceed $350,000 in any Fiscal YearIndebtedness permitted under SECTION 8.01(xiv)(B).
Appears in 1 contract
Samples: Credit Agreement (Southland Corp)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay or make any Restricted Junior Payment or set apart any sum for Make any Restricted Junior Payment; provided, or however, that, so long as it is permitted by applicable law,
(ya) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Subsidiary of Borrower that is a Guarantor may make Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or another Restricted Subsidiary of Borrower that is a Guarantor;
(b) any other Credit Party and Restricted Junior Payments made by any Subsidiary of Borrower that is not a Credit Party Guarantor may make Restricted Junior Payments to any other Borrower or another Restricted Subsidiary that is not a Credit Partyof Borrower;
(c) so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) Availability plus Qualified Cash of Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
Restricted Subsidiaries both before and immediately after giving effect thereto is greater than $20,000,000, and (iii) the pro forma Fixed Charge Coverage Ratio (calculated after giving effect to the making of such proposed additional Restricted Junior Payment and based upon Borrower’s most recently ended 12 months for which internal financial statements are available immediately preceding the date on which such additional proposed Restricted Junior Payment is proposed to be made) is not less than 1.05 to 1.00, then Borrower may declare make Restricted Junior Payments in cash in an aggregate amount not to exceed (i) during 2009, $1,000,000 and pay dividends(ii) during 2010, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;$1,000,000; and
(ivd) so long as no Default or Event of Default shall have has occurred and be is continuing or shall would be caused thereby, the preceding provisions will not prohibit:
(xi) regularly scheduled payments the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement;
(ii) the making of any Restricted Junior Payment in exchange for, or out of the form net cash proceeds of principalthe substantially concurrent sale (other than to a Subsidiary of Borrower) of, Equity Interests of Borrower (other than Prohibited Preferred Stock) or from the substantially concurrent contribution of common equity capital to Borrower;
(iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of Borrower or any Restricted Subsidiary of Borrower that is a Guarantor that is contractually subordinated in right of payment to the extent Obligations with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(iv) a Restricted Junior Payment made in cash for the purpose of repurchasing, redeeming or otherwise acquiring or retiring any Equity Interests of Borrower, any Restricted Subsidiary of Borrower or any direct or indirect parent of Borrower held by any current or former officer, director or employee of Borrower or any of its Restricted Subsidiaries or its direct or indirect parent, as the case may be, pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided for bythat the aggregate amount of Restricted Junior Payments permitted pursuant to this clause (iv) may not exceed $1,500,000 during any 12-month period; provided, however, that any amount not paid in a 12 month period shall be added to, and in accordance withavailable in, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed)subsequent 12 month periods;
(v) cash payments in respect the repurchase of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are Equity Interests deemed to occur upon the exercise of stock options or warrants if to the extent such Capital Stock represents Equity Interests represent a portion of the exercise price of such options or warrants and those stock options;
(iivi) make Restricted Junior Payments in connection with an amount equal to 100% of the retention amount of dividends in excess of $100,000,000 received after the Closing Date by Borrower or a Restricted Subsidiary of Borrower from the proceeds of the sale or other disposition, including through a merger or other consolidation, of all or substantially all of the Capital Stock in payment or assets of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrantsGolden Nugget Hotels and Casinos business, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which dividends were not otherwise included in the Administrative Agent is a party;Consolidated Net Income of Borrower for such period; and
(xiiivii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in an amount equal to 100% of the ordinary course amount of business dividends received after the Closing Date by Borrower or a Restricted Subsidiary of Borrower from an Unrestricted Subsidiary of Borrower (other than any such dividends paid out of the proceeds of the sale or other disposition, including through a merger or other consolidation, of all or substantially all of the Capital Stock or assets of the Golden Nugget Hotels and Casinos business), to the extent that such dividends were not otherwise included in an aggregate amount not to exceed $350,000 in any Fiscal Yearthe Consolidated Net Income of Borrower for such period.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor (a) Borrower shall it permit any of its Subsidiaries tonot, directly or indirectly (x) declareindirectly, ordermake, pay or make any Restricted Junior Payment or set apart any sum for agree to make, any Restricted Junior Payment; except that, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends during any fiscal year Borrower not in excess of the difference between (x) twenty five percent (25%) of Borrowers Excess Cash Flow for the preceding fiscal year of Borrower (y) any Voluntary Prepayments made by Borrower in the fiscal year in which such dividend is to be paid; provided that, each of the following conditions are satisfied:
(i) such dividend shall be made with funds legally available therefore,
(ii) such dividend shall not violate any law or make other distributions ratably regulation or the terms of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower or its equity holders;properties are bound,
(iii) Borrower may declare as of both the date of declaration and pay dividendsthe date of payment of such dividend and after giving effect thereto, whether in Cash no Event of Default or Common Stockact, condition or event which with the giving of notice or passage of time or both would constitute an Event of Default shall exist or have occurred, including a failure to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms comply with any of the Existing Preferred Stock as in effect on the date provisions of Section 9.14, 9.16, 9.15 or 9.17 hereof;,
(iv) so long as no Default or Event of Default shall have occurred both the date of declaration and be continuing or the date of payment of such dividend and after giving effect thereto, Borrower shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed)Solvent;
(v) cash payments in respect of accrued but unpaid interest during the 90 day period prior to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on both the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment declaration and to the extent required by the terms of the Existing Notes as in effect on the date hereof;of payment of such dividend Borrower shall have maintained Excess Availability of not less than $500,000; and
(vi) so long as no Default or Event of Default Borrower shall have occurred given Lender at least ten (10) Business Days prior written notice of its intent to declare such dividend and be continuing or Lender shall be caused therebynot have advised Borrower that, in Lender’s reasonable opinion, Borrower may purchase Capital Stock or options in respect will not be able to maintain Excess Availability of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon at least $500,000 during the death, disability, retirement, severance, or termination of employment 90 day period following the payment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus dividend.
(b) Borrower shall at all time during the 90 day period following the payment of any dividend permitted by Section 9.19(a) hereof maintain Excess Availability of not less then $500,000.
(c) The aggregate amount, if any, amount of Restricted Junior Payments permitted to be made, but not madeall Voluntary Prepayments made during any fiscal year of Borrower shall reduce the amount of dividends that Borrower may pay, pursuant to this Section 6.4(vi) 9.19 hereof during such fiscal year; provided that, the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount of all Voluntary Prepayments made and dividends declared or paid during any fiscal year of Borrowers may not to exceed $350,000 in any Fiscal Yeartwenty five percent(25%) of Borrowers’ Excess Cash Flow for the preceding fiscal year.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shallBorrowers shall not, nor and shall it not permit any of its their Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to Borrowers may make regularly scheduled payments of principal and interest in respect of any Credit PartyOther Indebtedness of Borrowers in accordance with the terms of, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock 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 Existing Preferred Stock Intercreditor Agreement, the Adelson Intercrexxxxx Xgreement, the Adelson Completixx Xxxxanty and the FF&E Intercreditor Agreement, as applicable, (b) any such payments in effect on respect of the date hereofSubordinated 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 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) so long as no Default or Event LVSI may make repurchases of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form capital stock of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are LVSI deemed to occur upon the exercise of stock options or warrants if to the extent such Capital Stock capital stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchasesoptions;
(ixv) Borrowers may make payments on any Completion Guaranty Loan prior to Completion Date, from amounts permitted to be deposited in the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant Guaranty Deposit Account subject to the terms of such convertible securities the Adelson Completixx Guaranty and the payment of cash in lieu of fractional shares in connection therewithDisbursement Agreement;
(xvi) Restricted Junior Payments deemed Borrowers and their wholly-owned Subsidiaries may make intercompany payments between such entities and intercompany payments to occur upon the settlement of or from any Swap Agreements not otherwise prohibited hereunder;Borrower; and
(xivii) payments made using solely Common Stock of Borrower or made using the proceeds ofSubject to subsection 6.6(iii), or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or Borrowers may repay loans advanced pursuant to a repurchase plan established substantially contemporaneously 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 issuance of 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 Common Stock);
(xii) 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 shall have occurred then exist and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearwould result therefrom.
Appears in 1 contract
Samples: Credit Agreement (Grand Canal Shops Mall Construction LLC)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay or make any Restricted Junior Payment or set apart any sum for Make any Restricted Junior Payment, or other than (ya) agree to declareso long as it is permitted by law, orderand so long as Borrower is a “pass-through” tax entity for United States federal income tax purposes, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably Pass-Through Tax Liabilities, net of any prior year loss carry-forwards, (b) Restricted Junior Payments to its equity holders;
Borrower’s Subsidiaries that are Guarantors, (iiic) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no unless a Default or an Event of Default shall have has occurred and be continuing or shall be caused therebyis continuing, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused therebywould result therefrom, Borrower may purchase Capital repurchase its Stock or options in respect of Capital Stock from present or that is owned by former directors, officers, consultants, directors or employees (or their respective spouses, ex-spouses, or estatesthe estate thereof) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments Subsidiaries in connection with the retention their resignation, termination or severance of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business employment in an aggregate amount not to exceed $350,000 100,000 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 Stock upon or in connection with the exercise or vesting of options or restricted Stock (granted pursuant to any Fiscal Yearoption 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 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 such cash payment shall not be for the purpose of evading the limitations of this Section 7.9 to officers, directors and employees in respect of phantom Stock.
Appears in 1 contract
Samples: Credit and Security Agreement (U.S. Well Services, LLC)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Paymentapart, or (y) agree to declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, any sum for any Restricted Junior Payment, except:
(ia) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower Company may make regularly scheduled payments of interest in respect of the Senior Subordinated Notes or any other Credit Party Subordinated Indebtedness in accordance with the terms of, and Restricted Junior Payments made by only to the extent required by, 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 other agreement pursuant to which such Subordinated Indebtedness was issued, in the case of any other Subordinated Indebtedness;
(b) dividends or distributions payable to Company or any Guarantor Subsidiary or to all holders (other than any Parent Company that is not a Credit Party Guarantor) of 126 Capital Stock of a Subsidiary on a pro rata basis, taking into account the relative preferences, if any, of the various classes of equity interests in each Subsidiary; provided that any dividends or distributions to any other Parent Company pursuant to this clause shall only be allowed to the extent such Parent Company immediately contributes such dividend or distribution as common equity to Company or the Subsidiary that is not a Credit Partymade the dividend or distribution;
(iic) Borrower may declare and pay dividends any dividend, payment or make other distributions ratably distribution to its equity holdersoccur as part of the Transactions on the Closing Date in connection with the amalgamation under the Merger Agreement;
(iiid) Borrower Company may declare make Restricted Junior Payments to or on behalf of any Parent Company in an amount sufficient to pay out-of-pocket legal, accounting and pay dividendsfiling 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, whether in Cash or Common Stock, any case in an aggregate amount not to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as exceed U.S.$2.0 million in effect on the date hereofany calendar year;
(ive) so long as no Default or Event of Default shall have occurred 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 be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for which are used by, and in accordance withany Parent Company to repurchase, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld redeem or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided otherwise acquire or retire for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase value any Capital Stock or options of any Parent Company, in respect of Capital Stock from present each case, held by any current or former directorsofficer, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employeeemployee of Company or any Guarantor Subsidiary (or permitted transferees, assigns, estates or heirs of the foregoing); provided that the aggregate cash amount of payments made price paid for all Capital Stock repurchased, redeemed, acquired or retired pursuant to this clause (e), 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) and net of repayment of loans related to such Capital Stock made by a Credit Party pursuant to Section 6.4(vi6.7(f) during any Fiscal Year and repaid in connection with such repurchase, redemption, acquisition or retirement, shall not exceed U.S.$2.5 million in any calendar year, with unused amounts being carried over for availability in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be madefollowing calendar year, but not madein any calendar year thereafter, pursuant and with the amount expended in any calendar year first being deemed to this Section 6.4(vi) during come from the immediately preceding Fiscal Yearamount allocated to such calendar year before giving effect to any carryover;
(viif) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements Company or one or more of its Subsidiaries are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way members of a substantially contemporaneous exchange consolidated, combined or use similar income tax group of proceeds which a direct or pursuant to a repurchase plan established substantially contemporaneously with indirect parent of Company is the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred common parent, Company and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower its Subsidiaries may make Restricted Junior Payments in pursuant to a tax sharing agreement or otherwise to the ordinary course extent necessary to pay, and which are used to pay, any income taxes of business in an aggregate such tax group that are attributable to Company and/or its Subsidiaries (including, for the avoidance of doubt, any U.S. income taxes (net of applicable foreign tax credits) imposed on a direct or indirect parent of Company pursuant to Section 951 of the Internal 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 exceed $350,000 in Section 951 Taxes was owned by Company (and not partly by any Fiscal Yeardirect 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. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior PaymentPayment except the following shall be permitted:
(a) [Reserved];
(b) Company may make regularly scheduled payments (but not voluntary prepayments) in respect of (i) the Existing Subordinated Notes 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 (ii) any repurchase or repayment of the Existing Subordinated Notes with the proceeds of any refinancing of the Existing Subordinated Notes permitted under Section 6.1(c);
(yc) agree to declareSo long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, order, pay or Company may make regularly scheduled payments of interest on any Restricted Junior Payment or set apart Take Out Securities; PROVIDED that (i) the aggregate amount of any sum for such interest payments shall not exceed $10,000,000 in any Fiscal Year and (ii) at the time of such Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower and after giving effect thereto, Company shall be in pro forma compliance with the covenants set forth in Section 6.8 as of the last day of the most recently ended Fiscal Quarter after giving effect to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Partysuch payments;
(iid) Borrower So long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Company may declare and pay dividends consummate the Tender Offer or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether effect the Redemption in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by accordance with the terms of the Existing Preferred Stock as in effect on the date hereofSubordinated Note Indenture;
(ive) 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 (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 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 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) [Reserved];
(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) [Reserved];
(m) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principalCompany may make Restricted Junior Payments to Holdings, to the extent provided for by, necessary to permit Holdings to pay reasonable general administrative costs and in accordance with, the terms of the Existing Notes in effect on the date hereof expenses and (yii) voluntary prepayments of the Existing Notes, subject to the prior approval 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 Administrative Agent and Requisite Lenders (amount of any such approval not to be unreasonably withheld or delayed)Restricted Junior Payment for such purpose;
(vn) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof[Reserved];
(vio) so 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, Borrower Holdings may purchase Capital Stock or options in respect repurchase shares of Capital Stock from present or former directorsof Holdings; PROVIDED, officersHOWEVER, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon that the death, disability, retirement, severance, or termination of employment amount of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year repurchase shall not exceed in the aggregate the sum of (a1) $500,000 plus (b) 15,000,000 at any time if the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during Leverage Ratio at the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price time of such options repurchase and after giving effect thereto is greater than or warrants and equal to 2.00:1.00 or (ii2) make Restricted Junior Payments in connection with $75,000,000 at any time if the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to Leverage Ratio at the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms time of such convertible securities repurchase and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent after giving effect thereto is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearless than 2.00:1.00.
Appears in 1 contract
Restricted Junior Payments. No Credit Loan Party shall, nor shall it permit any of its Restricted Subsidiaries through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptexcept the following:
(ia) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower Company may declare and pay dividends or make other distributions ratably to its equity holders;
holders (iiiprovided 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) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval any Person that is not to be unreasonably withheld or delayeda Loan Party);
(vb) cash payments any Restricted Subsidiary of Holdings may make Restricted Junior Payments to Holdings to the extent necessary to permit Holdings to make Restricted Junior Payments to any Parent Entity:
(i) the proceeds of 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 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 accrued but unpaid interest such Taxes; provided that Restricted Junior Payments pursuant to this subclause (i) shall not exceed the amount of Taxes that Holdings would have paid if Holdings and its Subsidiaries were a stand-alone taxpayer or 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 Taxes attributable to the income of any Unrestricted Subsidiaries of Holdings may be made only to the extent expressly provided that such Unrestricted Subsidiaries have made cash payments for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default such purpose to Holdings or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereofany Restricted Subsidiary;
(viii) so long as no Default or Event the proceeds of Default shall have occurred and be continuing or which shall be caused therebyused by 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, Borrower may purchase Capital Stock or options legal, accounting, tax reporting and similar expenses payable to third parties), that are reasonable and customary and incurred in respect the ordinary course of Capital Stock from present business, (2) 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, (or their respective spouses, ex-spouses, or estates3) of fees and expenses (x) due and payable by any Borrower or any Restricted Subsidiary upon and (y) otherwise permitted to be paid by Holdings and the deathRestricted 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, disabilityother fees and expenses, retirementrequired to maintain its organizational existence and auditing fees and expenses;
(iv) the proceeds of which shall be used to pay customary salary, severancebonus, severance and other benefits payable to current or termination former directors, officers, members of employment 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 directorRestricted 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, officerin each case, consultant to the extent such Taxes are attributable to such Restricted Subsidiary or employee; 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 amount shall be appropriately adjusted for any stock, splits, stock dividends, reverse stock splits, stock consolidations and similar transactions provided that the aggregate cash 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 payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of such Restricted Junior Payments permitted 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, and only to be madethe extent required by, but not made, the 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;
(f) notwithstanding anything to the contrary contained herein, Holdings may make Restricted Junior Payments, so long as the Payment Conditions are satisfied at the time of such Restricted Junior Payment;
(g) the distribution, by dividend or otherwise, of shares of 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 Section 6.4(viclause (i)) during the immediately preceding not to exceed $5,000,000 in any Fiscal Year;
(viij) so long as no Default payments made by Holdings or Event any Restricted Subsidiary in respect of Default shall have occurred 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 be continuing or shall be caused thereby, payments on account any repurchases of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are Equity Interests deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents Equity Interests represent a portion of the exercise price of such options or warrants or required withholding or similar taxes;
(k) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby;
(iil) repurchases of Equity Interests in any Parent Entity (or make Restricted Junior 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 exercise price of such stock options or warrants or other incentive interests;
(m) Permitted Refinancings of Subordinated Indebtedness;
(n) payments as part of an applicable high yield discount obligation or AHYDO catch-up payment;
(o) prepayments, redemptions, purchases, defeasances and other payments in respect of Subordinated Indebtedness (x) prior to their scheduled maturity, in an aggregate principal amount (as to all of 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 (y) 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 Subsidiary to any Loan Party (other than to a Holding Company, unless such payment is made in connection with the retention consummation of Capital Stock the Cristal Acquisition), in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (each case other than Disqualified Stock) pursuant to any such prepayments, redemptions, purchases, defeasances and other payments or distributions that are prohibited by the terms of such convertible securities and the payment of cash subordination provisions in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Year.respect thereof; and
Appears in 1 contract
Samples: Revolving Syndicated Facility Agreement (Tronox LTD)
Restricted Junior Payments. No Credit Party shallParent and Borrower shall not, nor and shall it not permit any of its their respective Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment; provided that (i) Borrower and Parent, or 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) agree to declareon or before November 16, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock2002, to holders of Existing Preferred Stock on 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 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 Existing Preferred Stock as in effect on the date hereof;
(iv) Parent Junior Subordinated Notes Issue Date and, so long as 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 shall to be caused therebymade, nor would an Event of Default or Potential Event of Default result from the making of such Restricted Junior Payment, (x1) Parent may make regularly scheduled payments of interest in cash in respect of any Parent Junior Subordinated Notes in accordance with the form terms of, 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 (2) Borrower may make Restricted Junior Payments to Parent in an amount necessary to permit Parent to make Restricted Junior Payments in accordance with the immediately preceding clause (z)(1), so long as Parent applies the amount of principalany 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 provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof necessary to permit Parent to pay its overhead expenses and (yb) voluntary prepayments in an amount necessary to permit Parent to discharge the consolidated tax liabilities of the Existing NotesParent and its Subsidiaries paid in cash, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, each case so long as no Default or Event Parent applies the amount of Default exists before or after giving effect any such Restricted Junior Payment for such purpose, (iv) Borrower may make Restricted Junior Payments to such payment pay Additional Costs in accordance with the definition of Additional Costs, and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(viv) 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, (B) after giving effect to the making of such Restricted Junior Payment Borrower shall be caused therebyin 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 purchase Capital Stock make Restricted Junior Payments to Parent to the extent necessary to permit Parent to purchase, redeem, acquire or options in respect otherwise retire for value shares of Capital Stock from present or former of Parent held by directors, officersofficers or employees of Parent or Borrower or any of their respective Subsidiaries, consultantsor options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their respective spousesestates of beneficiaries under their estates), ex-spouses, or estates) of Borrower or any Subsidiary in all cases only upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase stock option plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary other agreement under which such shares of Borrower may make Restricted Junior Payments in the ordinary course of business Capital Stock, options, related rights or similar securities were issued, in an aggregate amount not to exceed $350,000 2,500,000 in any Fiscal Year; provided that Borrower may carry forward to each succeeding Fiscal Year the aggregate amount of 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 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 (but not made) pursuant to this subsection 7.5(v)(2) in prior Fiscal Years, with up to a maximum amount of $5,000,000 during the term of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Brand Services)
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; PROVIDED that (i) Restricted Junior Payments made by Borrower to Company may make regularly scheduled payments of interest in respect of any Credit PartySubordinated Indebtedness in accordance with the terms of, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to the terms of subordination provisions contained in, the Existing Preferred Stock 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 not prohibited under subsection 7.12B, (ii) Company may make all payments necessary in effect on connection with the date hereof;
Merger, (iviii) 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 (xa) regularly scheduled payments in the form of principalan aggregate amount not to exceed (1) $250,000 in any Fiscal Year prior to a Qualified Public Offering or (2) $2,000,000 in any Fiscal Year after a Qualified Public Offering, to the extent provided necessary to permit Holdings to pay general administrative costs and expenses, (b) to the extent necessary to permit Holdings (or an Affiliate of Holdings) to discharge the consolidated, combined or other group tax liabilities of Holdings and its Subsidiaries, in each case so long as Holdings (or an Affiliate of Holdings) applies the amount of any such Restricted Junior Payment for bysuch purpose, (c) for repurchases of Capital Stock from employees of Company or any of its Subsidiaries, FTD-member florists, distributors or directors (or their heirs or estates) of Holdings, Company or any Subsidiary of 109 Company upon the death, disability or termination of employment (or termination of membership or distribution, in the case of a FTD-member florist or distributor); PROVIDED that such repurchases are made with the proceeds of such Restricted Junior Payments within three Business Days of the payment of such Restricted Junior Payments, and (d) to make payments of cash, in accordance with, the terms lieu of the Existing Notes issuance of fractional shares upon the exercise of warrants or upon the conversion or exchange of, or issuance of Capital Stock in effect lieu of cash dividends on any Capital Stock of Holdings, provided that the date hereof aggregate amount of Restricted Junior Payments made after the Closing Date pursuant to this clause (d) and clause (c) above shall not exceed $7,500,000, (iv) Company may make one or more Restricted Junior Payments to Holdings equal in the aggregate to the lesser of (a) the Settlement Insurance Proceeds and (yb) voluntary prepayments the difference between (1) the sum of the Existing NotesSettlement Insurance Proceeds and the Settlement Contribution and (2) the amount of Settlement Payments, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower Company may purchase Capital Stock or options of Holdings in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are a purchase deemed to occur upon the exercise of stock options options, warrants or warrants if other convertible securities to the extent such Capital Stock represents a portion of the exercise price of such options or warrants thereof, and (iivi) make Restricted Junior Payments in connection with Company may purchase or redeem the retention Subordinated Notes using the proceeds from a Public Offering of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements the gross proceeds from such Public Offering of Stock aggregate no less than $50,000,000 and are deemed not otherwise required to be repurchases;
applied as a mandatory prepayment pursuant to subsection 2.4B(iii)(c), PROVIDED that (ixa) the conversion of convertible securities Consolidated Senior Leverage Ratio (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant calculated to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed give pro forma effect to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or mandatory prepayment that will be made using the proceeds offrom such Public Offering of Stock) as of the last day of the Fiscal Quarter immediately preceding the date such proceeds are received is less than 1.50:1.00, or in exchange for, a substantially contemporaneous issuance (b) the excess of Common Stock the Revolving Loan Commitment Amount over the Total Utilization of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with Revolving Loan Commitments on the issuance day immediately preceding the closing of such Common Stock);
Public Offering of Stock is at least $15,000,000 and (xiic) so long as no Default or Event of Default Administrative Agent shall have occurred received an Officer's Certificate setting forth the calculation of Consolidated Senior Leverage Ratio required by the foregoing clause (a) and be continuing or shall be caused thereby, payments on account setting forth the availability of Subordinated Indebtedness to Revolving Loans as required by the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
foregoing clause (xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearb).
Appears in 1 contract
Samples: Credit Agreement (FTD Inc)
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that (i) Company may make scheduled -------- interest payments in respect of the Subordinated Notes in accordance with the terms thereof and of the Subordinated Note Indentures; provided, that to the -------- extent the Subordinated Note Indentures permit Company to pay interest thereon or liquidated damages in like-kind instruments in a principal amount equal to the amount of such interest or liquidated damages, Company shall pay such interest or liquidated damages in such like-kind instruments; (ii) Company may make Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary the extent necessary to Borrower redeem or defease all or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
portion of the Indebtedness under the Subordinated Note Documents with proceeds from Indebtedness permitted under subsection 7.1(vi); (iii) Borrower Company may declare make scheduled interest payments in respect of Permitted Seller Notes permitted under subsection 7.1(vii) in accordance with the terms of such Permitted Seller Notes; (iv) Company may make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms of, and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by 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 7.12B; provided, that -------- to the extent the terms of such Subordinated Indebtedness permit Company to pay interest or liquidated damages on such Subordinated Indebtedness in like-kind instruments in a principal amount equal to the Existing Preferred Stock as in effect on amount of such interest or liquidated damages, Company shall pay such interest or liquidated damages with such like-kind instruments; (v) Company may make Restricted Junior Payments to the date hereof;
extent necessary to redeem or defease all or any portion of the Indebtedness under the Subordinated Note Documents, provided that (iva) so long as no Event of Default or -------- Potential Event of Default shall have occurred and be continuing or shall be caused thereby, (xb) regularly scheduled payments Company shall be in compliance, on a pro forma basis giving effect thereto, with the form of principalcovenants set forth in subsection 7.6 hereof, (c) the Senior Leverage Ratio (calculated on a pro forma basis giving effect to the extent provided for bysuch redemption or defeasance) shall be less than 3.75:1.00 if such redemption or defeasance shall occur in 1998 or 1999, less than 3.50:1.00 if such redemption or defeasance 106 shall occur in 2000 or 2001, and in accordance withless than 3.25: 1.00 if such redemption or defeasance shall occur thereafter, the terms of the Existing Notes in effect on the date hereof and (yd) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to any such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default redemption or Event of Default shall have occurred and be continuing or shall be caused therebydefeasance, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (x) the amount of cash on hand of Company plus (y) the amount by which the Revolving Credit Commitments exceed the Total ---- Utilization of the Revolving Loan Commitments, shall equal or exceed $40,000,000 (and Company shall have delivered to Administrative Agent an Officer's Certificate (together with supporting information therefor), in form and substance reasonably satisfactory to Administrative Agent, certifying to the effect of clauses (b), (c) and (d)) and (e) and the aggregate amount of such redemption or defeasance, together with any other such redemption or defeasance since the Existing Effective Date, shall not exceed $100,000,000 plus the applicable premium; and (vi) Company may make dividends or other distributions, direct or indirect, on account of any shares of any class of capital stock of Company; provided that (a) $500,000 plus the Senior Leverage Ratio (calculated on a pro forma -------- basis giving effect thereto) shall be less than 2.00:1.00 or (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion either of the exercise price publicly announced ratings S&P or Xxxxx'x of the current senior unsecured, non- credit enhanced long term Indebtedness of Company that has been publicly issued are BBB-or better or Baa3 or better, respectively, and the amount of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention dividend shall not exceed 50% of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that Company's cumulative positive net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearincome.
Appears in 1 contract
Samples: Credit Agreement (Aurora Foods Inc)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay or make any Restricted Junior Payment or set apart any sum for Make any Restricted Junior Payment; provided, or (y) agree to declarehowever, orderthat, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptso long as it is permitted by law:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(iia) Borrower may declare and or pay dividends any dividend or make any other distributions ratably payment or distribution to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, then current employees pursuant to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock Borrower’s deferred compensation plan as in effect on the date hereofClosing Date;
(ivb) so long as no Default Borrower may make distributions to former employees, officers, or Event directors (or any spouses, ex-spouses, or estates of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms any of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayedforegoing);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before has occurred and is continuing or after giving effect to would result therefrom, (i) on account of redemptions of Stock of Borrower held by such payment Persons, provided that no redemptions shall be made under this clause (b)(i) if a Primary Triggering Event has occurred and to is continuing or would result therefrom and the extent required aggregate amount of such redemptions made by Borrower plus the terms aggregate amount of Indebtedness described in clause (j) of the Existing Notes as definition of Permitted Indebtedness would exceed $750,000 in effect any 12 month period, and (ii) solely in the form of forgiveness of Indebtedness of such Persons owing to Borrower on account of repurchases of the date hereofStock of Borrower held by such Persons; provided that such Indebtedness was incurred by such Persons solely to acquire Stock of Borrower;
(vic) Borrower may make cash distributions to any of its shareholders on account of redemptions of Stock of Borrower held by such Persons, provided that such redemptions shall only be made under this paragraph (c) so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) immediately after giving effect to each such redemption, Borrower shall have occurred (x) the Required Availability and be continuing or shall be caused thereby(y) a Consolidated Fixed Charge Coverage Ratio of at least 1.10:1.00, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directorsmeasured on a trailing 12 month basis, officers, consultants, or employees and (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (biii) the aggregate amount, if any, amount of Restricted Junior Payments permitted to be made, but such redemptions does not made, pursuant to this Section 6.4(vi) exceed $10,000,000 during the immediately preceding Fiscal Year;any 12-month period; and
(viid) Borrower may declare and pay cash distributions and dividends to its shareholders, provided that such distribution or dividend shall only be made under this paragraph (d) so long as (i) no Default or Event of Default shall have has occurred and be is continuing or shall be caused therebywould result therefrom, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans immediately after giving effect to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrantseach such distribution or dividend, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
Borrower shall have (x) Restricted Junior Payments deemed to occur upon the settlement Required Availability and (y) a Consolidated Fixed Charge Coverage Ratio of any Swap Agreements not otherwise prohibited hereunder;
at least 1.10:1.00, measured on a trailing 12 month basis, and (xiiii) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance aggregate amount of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred distributions and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount dividends does not to exceed $350,000 in 5,000,000 at any Fiscal Yeartime.
Appears in 1 contract
Samples: Credit Agreement (TrueBlue, Inc.)
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Restricted Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment; provided that (i) Company may make regularly -------- scheduled payments of 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 Indenture; (ii) Company may make regularly scheduled payments of interest in respect of any other 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) Company may make a "Change of Control Offer" (as defined in the Subordinated Note Indenture) with respect to the Subordinated Notes; provided, however, that -------- ------- prior to making any such "Change of Control Offer", either (x) Company shall (1) repay in full all Obligations (including, without limitation, any unpaid principal, interest, fees, costs and expenses owed by Company under this Agreement or 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 Company 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) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (shall otherwise approve such approval not to be unreasonably withheld or delayed);
(v) cash payments in "Change of Control Offer" with respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Subordinated Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Year.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay will declare or make any Restricted Junior Payment or set apart at any sum for any Restricted Junior Paymenttime; provided, or (y) agree to declarehowever, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:that
(ia) Restricted Junior Payments made by Borrower with respect to any Credit Partyperiod during which Holdings is an S Corporation or a substantially similar pass-through entity for federal income tax purposes and a QSSS Election is in effect for the Borrower, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) the Borrower may declare and pay dividends or make other distributions ratably dividend payments to its equity holdersMedia Holdings in an amount (together with loans made pursuant to Section 7.5(m)(i)) not in excess of the Permitted Holdings Tax Distributions and the Permitted Shareholder Tax Distributions;
(iiib) the Borrower may declare make the Qualifying IPO Funding Transaction payments or make dividends to Holding Companies (including through any other Holding Company) in amounts to permit Holding Companies to make Qualifying IPO Funding Transaction payments (provided that the aggregate amount of such payments together with payments made pursuant to Section 7.5(m)(vi) shall not exceed the aggregate amount of permitted Qualifying IPO Funding Transaction payments);
(c) the Borrower may make scheduled payments of interest on (i) the Senior Subordinated Notes to the extent required to be paid in cash pursuant to the Senior Subordinated Note Indenture, and pay dividends, whether in Cash or Common Stock, subject to holders of Existing Preferred Stock on the Existing Preferred Stock applicable subordination terms thereof and (ii) other Subordinated Indebtedness permitted to be incurred under Section 7.1(m) to the extent required by the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, and subject to the applicable subordination terms of the Existing Preferred Stock as in effect on the date hereofthereof;
(ivd) the Borrower may declare and make dividends (together with loans made pursuant to Section 7.5(m)(ii)) to Media Holdings in an amount equal to the scheduled payments of interest on the Media Holdings Discount Notes to the extent required to be paid in cash pursuant to the Media Holdings Discount Notes Indenture, and subject to the applicable subordination terms thereof, provided that, in any fiscal year, the aggregate amount paid pursuant to this clause (d) during such fiscal year (together with the aggregate amount of loans made pursuant to Section 7.5(m)(ii) during such fiscal year), shall not exceed the aggregate amount of scheduled payments of interest on the Media Holdings Discount Notes to the extent required to be paid in cash on or after October 15, 2008 pursuant to the Media Holdings Discount Notes Indenture during such fiscal year (for the avoidance of doubt any cash interest payments which may become due prior to October 15, 2008 as a result of any election to make cash interest payments with respect to the Media Holdings Discount Notes shall not be deemed to be “required to be paid in cash,” for the purposes of Sections 7.5 and 7.6);
(e) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Borrower may make dividends (together with loans made pursuant to Section 7.5(m)(iii)) to any Holding Company (including through any other Holding Company) in an amount equal to the scheduled payments of interest on Holding Company Debt incurred in accordance with Section 7.15(a)(i) or (iv) to the extent required to be paid in cash pursuant to the documentation governing such Holding Company Debt, provided, that, in any fiscal year, the aggregate amount of dividends made pursuant to this clause (e) during such fiscal year (together with the amount of loans made pursuant to Section 7.5(m)(iii) during such fiscal year) shall not exceed the aggregate amount of scheduled payments of interest on such Holding Company Debt to the extent required to be paid in cash during such fiscal year;
(f) the Borrower may make Restricted Junior Payments in order for the Borrower or a Holding Company, as the case may be, to (i) redeem, repurchase or otherwise acquire Holdings’ capital stock in open market transactions or otherwise (including redemptions) and/or (ii) pay dividends or other distributions to any holders of the capital stock of Holdings; provided that in the case of each payment under this clause (f): (x) regularly scheduled payments in the form of principalno Default shall have occurred and be continuing or be caused thereby, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notesafter giving effect to any such payment, subject (1) prior to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance withQualifying IPO Closing Date, the terms and conditions of the Existing Notes, as in effect Total Leverage Ratio (on the date hereof, so long as no Default or Event of Default exists before or a pro forma basis after giving effect to such payment payment) is less than 5.00 to 1 and (2) thereafter, the Total Leverage Ratio (on a pro forma basis after giving effect to such payment) is 1.0x lower than the maximum Total Leverage Ratio at such time required under Section 7.10(a), in the case of each of clauses (1) and (2) for the fiscal quarter most recently completed at such time as set forth in a certificate of a Financial Officer certifying as to and providing a reasonably detailed calculation of the same after giving effect to such Restricted Junior Payment together with the financial statements required to be delivered by Section 6.1(b) and (z) the Senior Leverage Ratio on a pro forma basis after giving effect to the extent required by payment of any such Restricted Junior Payment (and the terms Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer certifying as to and providing a reasonably detailed calculation of such Senior Leverage Ratio after giving effect to the payment of such Restricted Junior Payment) shall not, in the case of any of the Existing Notes as in effect on the date hereofforegoing payments, exceed 5.00 to 1;
(vig) at any time on or after October 15, 2008 the Borrower may make Restricted Junior Payments in order for Media Holdings or any other Holding Company to redeem, repurchase or otherwise acquire (but not in any open market transaction) the Media Holdings Discount Notes or other Holding Company Debt and to pay any interest, premium, fees, costs, expenses and other amounts owing thereunder; provided that in the case of each payment under this clause (g): (i) no Default shall have occurred and be continuing or be caused thereby (including under Section 7.10, on a pro forma basis after giving effect to such payment, the application of the proceeds thereof and the incurrence of any Indebtedness in connection therewith), as set forth in a certificate of a Financial Officer certifying as to and providing a reasonably detailed calculation of the same, together with the financial statements required to be delivered by Section 6.1(b) and, (ii) if such Restricted Junior Payment is made other than with proceeds of the issuance of Subordinated Indebtedness incurred under Section 7.1(l) or (m), the Senior Leverage Ratio on a pro forma basis after giving effect to the payment of any such Restricted Junior Payment, the application of the proceeds thereof and the incurrence of any Indebtedness in connection therewith is not greater than 4.00 to 1 (and the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer certifying as to and providing a reasonably detailed calculation of such Senior Leverage Ratio after giving effect to the payment of such Restricted Junior Payment);
(h) so long as no Default shall have occurred and be continuing or Event shall be caused thereby the Borrower may declare and make Restricted Junior Payments to any Holding Company (i) to pay administrative expenses and other costs and expenses; provided that the amount of cash distributions made pursuant to this clause (h) (together with the amount of loans made pursuant to Section 7.5(m)(iv)(A)) shall not exceed (A) prior to the Qualifying IPO Closing Date, $3,000,000 and (B) thereafter, $5,000,000, in each case, in any fiscal year and (ii) to pay indemnity claims arising under, or amounts required to be paid to third parties pursuant to the Private Equity Issuance Documents in an aggregate amount not to exceed during the term of this Agreement (together with the amount of loans made pursuant to Section 7.5(m)(iv)(B)) the amount of proceeds of the Private Equity Issuance actually contributed to the Borrower pursuant to Section 6.15(c);
(i) the Credit Parties may pay their obligations to Empire Burbank to the extent required to be paid under the Empire Burbank Lease;
(j) so long as no Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultantsLBCI, or employees any successor entity thereto, may make the payments described in clause (or their respective spouses, ex-spouses, or estatesvi) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, definition of Restricted Junior Payments permitted Payment or make the payments with respect to be made, but not made, pursuant to this Section 6.4(vi) during any notes issued under the immediately preceding Fiscal Yearemployment agreement described in such clause (vi);
(viik) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, any Credit Party may make dividend payments on account to Holdings (through another Holding Company, if applicable), to enable Holdings to make the payments with respect to any portion of Indebtedness incurred the “Incentive Bonus” which may become payable pursuant to (A) the employment agreements of Winter Xxxxxx dated December 18, 2002, Xxxxxx Mars dated November 15, 1998, and Xxxxxx Xxxxx dated September 1, 1999, in each case as amended from time to time, respectively, and (B) any other Management Incentive Contracts or, in each case, with respect to any notes issued with respect thereto; provided that the aggregate amount of such dividends (together with the aggregate amount of loans made pursuant to Section 6.1(c7.5(m)(v)) shall not exceed (x) the amount of such bonuses required to be paid under such employment agreements, in the case of clause (A) above, or (y) in the case of clause (B) above, $12,500,000 (including, in each case, any amounts required to be paid under any such notes);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xiil) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Borrower may make payments of interest on account of the Xxxxxxxx Subordinated Indebtedness Debt to the extent that such payments of interest are permitted to be made under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;Xxxxxxxx Subordination Agreements; and
(xiiim) so long as at any time on or after July 15, 2007, the Borrower may make Restricted Junior Payments to redeem, repurchase or otherwise acquire (but not in any open market transaction) Subordinated Indebtedness (other than Xxxxxxxx Subordinated Debt) and to pay any interest, premium, fees, costs, expenses and other amounts owing thereunder; provided that in the case of each payment under this clause (m): (i) no Default or Event of Default shall have occurred and be continuing or be caused thereby (including under Section 7.10, on a pro forma basis after giving effect to such payment, the application of the proceeds thereof and the incurrence of any Indebtedness in connection therewith), as set forth in a certificate of a Financial Officer certifying as to and providing a reasonably detailed calculation of the same, together with the financial statements required to be delivered by Section 6.1(b) and, (ii) if such Restricted Junior Payment is made other than with proceeds of the issuance of Subordinated Indebtedness incurred under Section 7.1(l) or (m) or Holding Company Debt, the Senior Leverage Ratio on a pro forma basis after giving effect to the payment of any such Restricted Junior Payment, the application of the proceeds thereof and the incurrence of any Indebtedness in connection therewith is not greater than 4.00 to 1 (and the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer certifying as to and providing a reasonably detailed calculation of such Senior Leverage Ratio after giving effect to the payment of such Restricted Junior Payment). Nothing herein shall be caused therebydeemed to prohibit the making of any dividend or distribution, Borrower or other payment constituting a Restricted Junior Payment under clauses (ii) or (iii) of the definition thereof by any Subsidiary to any Credit Party. Notwithstanding anything herein to the contrary, if part or all of a Permitted Holdings Tax Distribution or a Permitted Shareholder Tax Distribution is made in the form of a loan (rather than a dividend or other form of distribution), then (i) the terms of such loan shall be determined in the sole discretion of the Borrower, and (ii) the subsequent cancellation or forgiveness of such loan shall not be treated as a Restricted Junior Payment and shall not reduce the amount of subsequent Permitted Holdings Tax Distributions or Permitted Shareholder Tax Distributions. Notwithstanding anything in this Agreement or any Subsidiary of Borrower may the other Loan Documents (including the Alta Subordination Agreement and the Investor Subordination Agreement) to the contrary, each Agent and each Lender hereby consents to (i) the Assumption Agreement, the Reaffirmation Agreement, the Stockholder Voting Agreement, the Termination Agreement, the Holdings Merger Agreement, the Holdings Merger, the Entity Conversions, the Qualifying IPO, and the Qualifying IPO Funding Transactions and to the execution, delivery and performance by the Administrative Agent (for itself and on behalf of the Lenders) of the Second Confirmation of Subordination Agreements, the Third Confirmation of Subordination Agreements, the Omnibus Confirmation Agreement and the Second Omnibus Confirmation Agreement, and (ii) the payments permitted under the last paragraph of Section 2.11(b), and nothing herein or therein shall be deemed to prohibit the Alta Repayment or any payments described in clauses (a), (c) or, subject to the subordination provisions of the Senior Subordinated Note Indenture or of the indenture relating to other Subordinated Indebtedness (other than Xxxxxxxx Subordinated Debt), as applicable, (e) of the definition of Qualifying IPO Funding Transactions made within fifteen months after the consummation of the Qualifying IPO. Notwithstanding anything in this Agreement or any of the other Loan Documents to the contrary, with respect to any period during which Holdings is not an S Corporation or a substantially similar pass-through entity for federal income tax purposes, any Credit Party will be permitted to make Restricted Junior Payments payments to any other Credit Party or any Holding Company (whether in the ordinary course form of business loans, dividends, distributions, contributions or otherwise) to permit such other Credit Party or such Holding Company to pay any federal, state, foreign or local tax liability of any Credit Party or any federal, state, foreign or local tax liability of any Holding Company attributable to the Credit Parties (including tax liabilities determined under Section 1552 of the Code and the consolidated return regulations promulgated under the Code); provided that any amount, not used to pay such tax liability, and refunds which are received by any Holding Company which are attributable to any Credit Party or otherwise attributable to the amounts so distributed shall be returned promptly by such Holding Company to the Credit Parties. Neither Section 7.5 nor this Section 7.6 shall prohibit any payment permitted to be made by the last paragraph of Section 2.11(b) or any loan or dividend to Media Holdings or any other Holding Company promptly applied in an aggregate amount not to exceed $350,000 in any Fiscal Yearthe manner contemplated thereby.
Appears in 1 contract
Restricted Junior Payments. No Subsection 7.5 of the Credit Party shallAgreement is hereby amended by deleting the text thereof in its entirety and substituting the following therefor: “Borrower shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary ; provided that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options (i) make regularly scheduled payments of interest in respect of Capital Stock 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 present time to time to the extent permitted under subsection 7.15, (ii) repurchase or former directorsredeem the Senior Subordinated Notes in accordance with the terms of the Senior Subordinated Note Indenture if after giving pro forma effect to such repurchase or redemption and to the incurrence of any Indebtedness in connection with such repurchase or redemption, officersBorrower’s Consolidated Fixed Charge Coverage Ratio as of the last day of the immediately preceding Fiscal Quarter for which Borrower has delivered quarterly financial statements pursuant to subsection 6.1(ii) (and Borrower shall deliver an Officer’s Certificate to Agent setting forth such calculation at least three Business Days prior to such repurchase or redemption) shall be in excess of 2.00:1.00, consultants, or employees (or their respective spouses, ex-spouses, or estatesiii) declare and make dividend payments in respect of the stock of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination and repurchase stock of employment of such director, officer, consultant or employeeBorrower; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during all such dividends and repurchases in any Fiscal Year shall not exceed in the aggregate lesser (such lesser amount being the sum “Maximum Permitted Stock Payments”) of (a1) $500,000 plus 25,000,000 or (b2) 50% of Consolidated Net Income of Borrower (if a positive number) for the aggregate amountimmediately 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 Restricted Junior the Maximum Permitted Stock Payments permitted 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 made, but not made, in pro forma covenant compliance and the aggregate amount of all such dividend payments and stock repurchases made pursuant to this Section 6.4(viclause (iii) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused therebynot exceed $50,000,000, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (iiiv) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock purchase stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use cashless exercise of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearoptions thereunder.”
Appears in 1 contract
Samples: Credit Agreement (Joy Global Inc)
Restricted Junior Payments. No The Credit Party shallParties shall not, nor and shall it not permit any of its their respective Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that (i) Restricted Junior Payments made 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 result therefrom: (a) Borrower may make Cash advances (any such advance by Borrower to any Credit Party, Restricted Junior Payments made or direct payment by any Subsidiary to Borrower or any other Credit Party 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 Restricted Junior Payments made customary fees, costs and expenses incurred by any Subsidiary that is Holdings (and not a Credit Party payable to any other Subsidiary that is not a Credit Party;
(iiAffiliates of Holdings) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous public issuance of Common Stock Securities of Borrower Holdings (either provided that each such Holdings Advance is evidenced by way a promissory note (which may consist of a substantially contemporaneous exchange one master note that covers all Holding Advances from time to time) payable on demand by Borrower) and (b) on or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with after the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused therebyapplicable Permitted Dividend Date, Borrower may pay dividends to Holdings or any Subsidiary NewHoldco to permit Holdings or NewHoldco to pay interest, dividends or other coupon in respect of Borrower may make Restricted Junior Payments in the ordinary course of business Permitted Equity Financings in an aggregate amount not to exceed $350,000 the corresponding amount of interest, dividends or other coupon then due and payable in accordance with the terms (without giving effect to any Fiscal Yeardefault, optional condition or other contingency) of such Permitted Equity Financings.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay or make any Restricted Junior Payment or set apart any sum for Make any Restricted Junior Payment; provided, or that (ya) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower of Parent may declare and pay dividends to a Loan Party (other than Parent), (b) any Subsidiary of Parent may pay dividends to Parent (i) in amounts necessary to pay customary expenses of the Parent in the ordinary course of its business as a public holding company (including salaries and related reasonable and customary expenses incurred by employees of the Parent) and (ii) in amounts necessary to pay taxes when due and owing by Parent, (c) any Subsidiary of Parent or the applicable parent company of such Subsidiary may make other distributions ratably Restricted Junior Payments to its equity holders;
(iii) Borrower may declare such Subsidiary's shareholders and pay dividends, whether in Cash or Common Stock, employees and management personnel of such Subsidiary's shareholders pursuant to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred shareholder agreements or similar agreements between such Subsidiary or the applicable parent company of such Subsidiary and such shareholders, including without limitation payments in respect of and pursuant to the Put Obligations, (d) Parent and any Subsidiary of Parent may repurchase from its employees Stock as of Parent or such Subsidiary up to an aggregate amount, for all such repurchases by Parent and all Subsidiaries of Parent permitted pursuant to this clause (d), not to exceed $4,000,000 in effect on any fiscal year; provided, however, that if the date hereof;
amount of repurchases permitted by this clause (ivd) to be made in any fiscal year is greater than the amount of the repurchases actually made in such fiscal year (the amount by which such permitted repurchases for such fiscal year exceeds the actual amount of repurchases made for such fiscal year, the "Repurchase Carry-Over Amount"), then the Repurchase Carry-Over Amount may be carried forward to the next succeeding fiscal year (the "Repurchase Succeeding Fiscal Year"); provided further that the Repurchase Carry-Over Amount applicable to a particular Repurchase Succeeding Fiscal Year may not be carried forward to another fiscal year, (e) any Loan Party may make payments in respect of Earn-outs, and (f) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (xi) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes would otherwise arise as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants result thereof and (ii) make Excess Availability, after giving effect thereto, exceeds the Applicable Excess Availability Amount (such conditions, collectively, the "Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrantsPayment Basket Conditions"), options Parent and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower its Subsidiaries may make Restricted Junior Payments in the ordinary course of business in any fiscal year ending on or after December 31, 2011, not otherwise permitted pursuant to clauses (a) through (e) above, up to an aggregate amount not to exceed $350,000 75% of Excess Cash Flow for the immediately prior fiscal year; provided, however, that, if the amount of Restricted Junior Payments permitted by this clause (f) to be made in any fiscal year ending on or after December 31, 2011 is greater than the amount of the Restricted Junior Payments actually made in such fiscal year (the amount by which such permitted Restricted Junior Payments for such fiscal year exceeds the actual amount of Restricted Junior Payments made for such fiscal year, the "Restricted Junior Payments Carry-Over Amount"), then the Restricted Junior Payments Carry-Over Amount may be carried forward to the next succeeding fiscal year (the "Restricted Junior Payments Succeeding Fiscal Year"); provided further that the Restricted Junior Payments Carry-Over Amount applicable to a particular Restricted Junior Payments Succeeding Fiscal Year (1) may not be carried forward to another fiscal year and (2) may not in any event be used unless the Restricted Junior Payment Basket Conditions are satisfied.
(h) Subsection (e) of Section 7 of the Credit Agreement is hereby amended and restated in its entirety as follows:
Appears in 1 contract
Samples: Credit Agreement (MDC Partners Inc)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptexcept that:
(a) (i) Restricted Junior Payments made by Borrower to any Credit PartyNewPageCo may make regularly scheduled payments of interest in respect of the NewPageCo First Lien Term Loan Agreement, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party Senior Secured Floating Rate Notes, the Senior Secured Fixed Rate Notes and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare the Senior Subordinated Notes in accordance with the terms of, and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to any applicable subordination provisions contained in, the indenture or other agreement pursuant to which any such Indebtedness was issued, (ii) NewPageCo may make scheduled payments of principal and mandatory prepayments required pursuant to the terms of the Existing Preferred NewPageCo First Lien Term Loan Agreement, (iii) NewPageCo may make voluntary prepayments of principal under the NewPage First Lien Term Loan Agreement so long as (A) both before and after giving effect to any such voluntary prepayment no Default or Event of Default shall have occurred and be continuing and (B) after giving effect to any such prepayment Excess Availability shall be at least $50,000,000, and (iv) so long as no Default or Event of Default shall have occurred and be continuing NewPageHoldCo may make mandatory prepayments or mandatory redemptions of the NewPageHoldCo PIK Notes pursuant to the terms thereof with any proceeds from a capital contribution to, or the issuance of any Capital Stock as in effect on the date hereofof NewPageHoldCo (other than proceeds of Permitted Cure Securities);
(ivb) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, NewPageCo may make Restricted Junior Payments to NewPageHoldCo in an aggregate amount not to exceed $2,000,000 (xor after the occurrence of an IPO, $3,000,000) regularly scheduled payments in the form of principalany Fiscal Year, to the extent provided for bynecessary to permit NewPageHoldCo to pay general administrative costs and expenses, and in accordance without-of-pocket legal, the terms of the Existing Notes in effect on the date hereof accounting, filing and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereofother general corporate overhead costs, so long as no Default or Event NewPageHoldCo applies the amount of Default exists before or after giving effect to any such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereofRestricted Junior Payment for such purpose;
(vic) Subsidiaries of NewPageCo may make Restricted Junior Payments (i) to NewPageCo or to any parent entity of such Subsidiary which is a Subsidiary and (ii) on a pro rata basis to the other equity holders of such Subsidiary;
(d) for so long as NewPageCo is a member of a group filing a consolidated or combined tax return with any direct or indirect parent of NewPageCo, payments to such direct or indirect parent in respect of an allocable portion of the tax liabilities of such group that is attributable to NewPageCo and its Subsidiaries (“Tax Payments”) and to pay franchise or similar taxes and fees of such direct or indirect parent required to maintain such direct or indirect parent’s corporate existence; provided that such Tax Payments shall not exceed the lesser of (i) the amount of the relevant tax (including any penalties and interest) that NewPageCo would owe if NewPageCo were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of NewPageCo and such Subsidiaries from other taxable years and (ii) the net 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 NewPageCo shall be paid over to the appropriate taxing authority within 60 days of the direct or indirect parent’s receipt of such Tax Payments or refunded to NewPageCo;
(e) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower NewPageCo may make Restricted Junior Payments to NewPageHoldCo to the extent necessary to permit NewPageHoldCo to:
(i) repurchase, redeem or otherwise acquire or retire shares of, or options or warrants to purchase shares of, Capital Stock of NewPageHoldCo, or to make a Restricted Junior Payment to Maple Timber Acquisition LLC and Maple Timber Acquisition II LLC to repurchase, redeem or otherwise acquire or retire their equity interests or options in respect of Capital Stock or warrants to purchase their equity interests, from present current or former directorsemployees, consultants, officers or directors of NewPageHoldCo, NewPageCo or any Subsidiaries thereof or their respective estates, spouses, former spouses, family members or other permitted transferees, in an aggregate amount not to exceed $5,000,000 in any calendar year provided, that NewPageCo may carry over and make in subsequent calendar years, in addition to the amounts permitted for such calendar year, the amount of such purchases, redemptions or other acquisitions or retirements for value permitted to have been made but not made in any preceding calendar year up to a maximum of $15,000,000 million in any calendar year; provided further that such amount in any calendar year may be increased by an amount not to exceed (A) the net cash proceeds from the sale of equity or other beneficial ownership interests of NewPageCo (or NewPageHoldCo or a direct or indirect parent or NewPageHoldCo to the extent such net cash proceeds are contributed to the common equity of NewPageCo) to employees, officers, consultantsdirectors or consultants of NewPageHoldCo, NewPageCo and the Subsidiaries or employees NewPageHoldCo that occurs after the date of this Agreement (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon to the death, disability, retirement, severance, or termination of employment extent the cash proceeds from the sale of such director, officer, consultant equity or employee; provided that other beneficial ownership interests have not otherwise been applied to the aggregate payment of Restricted Junior Payments) plus (B) the cash amount proceeds of payments made key man life insurance policies received by NewPageCo and its Subsidiaries after the date of this Agreement less any amounts previously applied to the payment of Restricted Junior Payments pursuant to this Section 6.4(viclause (e);
(A) substantially concurrently with the consummation of any IPO, pay dividends or repurchase or redeem equity interests (or options or warrants to purchase equity interests) in an aggregate amount not to exceed $35,000,000, and (B) after the occurrence of any such IPO, so long (x) as the Total Leverage Ratio as of the end of the most recently ended Fiscal Quarter prior to such payment was less than or equal to 2.50 to 1 and (y) after giving effect to any such payment Excess Availability shall be at least $50,000,000, pay dividends or repurchase or redeem equity interests (or options or warrants to purchase equity interests) during any Fiscal Year shall in an aggregate amount not to exceed in the aggregate the sum 50% of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during Consolidated Excess Cash Flow for the immediately preceding Fiscal Year;
(viiiii) repurchase, redeem or otherwise acquire or retire the NewPageHoldCo PIK Notes, term loans outstanding under the NewPageCo First Lien Term Loan Agreement, any Senior Secured Floating Rate Notes, any Senior Secured Fixed Rate Notes or any Senior Subordinated Notes with (x) the amount of Net Asset Sale Proceeds received from any Asset Sale that is not otherwise required to be used to repay Indebtedness or reinvested in assets used or useful in a Permitted Business and (y) an amount equal to Consolidated Excess Cash Flow during the immediately preceding Fiscal Year (and that is not otherwise required to be used to repay Indebtedness or used to pay a dividend or repurchase or redeem equity interests pursuant to clause (e)(ii) above); provided that no such repurchase, redemption, acquisition or retirement may be made in reliance on this clause (e)(iii) unless (1) the Senior Leverage Ratio as of the end of the most recently ended Fiscal Quarter prior to such repurchase, redemption, acquisition or retirement, was less than or equal to 2.50 to 1 and (2) the aggregate amount paid in connection with all such repurchases, redemptions, acquisitions and retirements pursuant to this clause (e)(iii) shall not exceed $250,000,000;
(f) the repurchase of Capital Stock deemed to occur upon any “cashless” exercise of stock options, warrants or other convertible securities;
(g) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account the redemption, repurchase or other acquisition for value of Indebtedness incurred any Capital Stock of any Subsidiary that is held by a Person that is not an Affiliate of NewPageCo to the extent required to satisfy applicable laws, rules or regulations; provided that the consideration for such redemption, repurchase or other acquisition shall not exceed $1,000,000 during the term of this Agreement;
(h) repayments of the NewPageHoldCo PIK Notes, the NewPageCo First Lien Term Loan Agreement, Senior Secured Floating Rate Notes, the Senior Secured Fixed Rate Notes or the Senior Subordinated Notes in connection with any refinancing thereof permitted pursuant to Section 6.1(c6.1(q);
(viii) Borrower may (i) make Restricted Junior Payments payments made to officers, directors, consultants or employees of NewPageCo on its Capital Stock that are deemed or about the Closing Date in an amount not to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants exceed $3,000,000;
(j) payments to NewPageHoldCo to permit NewPageHoldCo to pay reasonable accounting, legal and (ii) make Restricted Junior Payments administrative expenses incurred in connection with NewPageHoldCo’s obligations under the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities NewPageHoldCo PIK Notes (other than Disqualified Stockprincipal and interest thereon) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds ofrelated registration rights agreement when due, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Year1.5 million per annum.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (NewPage CORP)
Restricted Junior Payments. No Credit Party shall, Borrower shall nor shall it any Borrower permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; PROVIDED that (i) Restricted Junior Payments made by Borrower to any Credit PartyCompany may make payments of regularly scheduled interest in respect of the Senior Subordinated Notes, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party in accordance with the terms of and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by by, and subject to the terms of subordination provisions contained in, the Existing Preferred Stock as in effect on the date hereof;
Senior Subordinated Note Indenture; (ivii) 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 (xa) regularly scheduled payments make repurchases of Senior Subordinated Notes in the form of an aggregate amount not to exceed $25,000,000 (including principal, to the extent provided for byinterest, premiums, fees and in accordance with, the terms of the Existing Notes in effect on the date hereof other expenses) and (yb) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or the Consolidated Leverage Ratio, after giving PRO FORMA effect to such payment repurchases and to the extent required by the terms any Indebtedness incurred in connection therewith, does not exceed 3.00:1.00, repurchase an additional $25,000,000 (including principal, interest, premiums, fees and other expenses) of the Existing Notes as in effect on the date hereof;
such Senior Subordinated Notes; and (viiii) 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 purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower Company may make Restricted Junior Payments in the ordinary course of business to Holdings (X) in an aggregate amount not to exceed $350,000 500,000 in any Fiscal Year 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 the unused portion of such $1,000,000 may be carried forward to the succeeding Fiscal Year, but only up to an aggregate amount not to exceed $2,000,000 of such Restricted Junior Payments for any given Fiscal Year) or $5,000,000 during the term of this Agreement PLUS the net cash proceeds of any issuance of Holdings Common Stock to Management Investors and other officers and employees of Company and its Subsidiaries in accordance with the terms of the Stockholders Agreement and the Management Investment Incentive Plan, which net cash proceeds have been contributed to Company, and (Z) in an amount necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings, Company and Company's Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (Goss Graphic Systems Inc)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior PaymentPayment except that (a) the Company may make regularly scheduled payments of interest in respect of Senior Subordinated Notes or Refinancing Notes in accordance with the terms of, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to the terms subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued; (b) the Company may prepay or redeem the Senior Subordinated Notes in full with the proceeds of the Existing Preferred Stock as in effect on the date hereof;
Refinancing Notes; (ivc) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Company may make Restricted Junior Payments to Holdings (xi) regularly scheduled payments in the form of principalan aggregate amount not to exceed $250,000 in any Fiscal Year, to the extent provided for by, necessary to permit Holdings to pay general administrative costs and in accordance with, the terms of the Existing Notes in effect on the date hereof expenses and (yii) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided 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 by, and in accordance with, such purpose; (d) the terms and conditions of the Existing Notes, as in effect Company may on the date hereofClosing Date pay a transaction fee to the Sponsor pursuant to and as expressly required by the Management Agreement and reimburse the Sponsor for reasonable out of pocket fees, costs and expenses incurred in connection with the Transactions; (e) so long as no Default or Event of Default exists before pursuant to Sections 8.1(a), 8.1(f) or after giving effect to such payment 8.1(g) shall have occurred and to be continuing or shall be caused thereby, the extent required by Company may pay the terms of Management Fees (plus reasonable expenses in connection with the Existing Notes as in effect on the date hereof;
Management Agreement and unpaid amounts accrued for prior periods); (vif) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower the Company may purchase Capital Stock or options repurchase the AA Notes which were not tendered in respect of Capital Stock from present or former directors, officers, consultants, or employees connection with the Debt Tender; (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(viig) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account Holdings may purchase or redeem (and the Company may declare and pay dividends or make other distributions to Holdings the proceeds of Indebtedness incurred pursuant which are to Section 6.1(c);
(viiibe used by Holdings to so purchase or redeem) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities Holdings (including warrantsrelated stock appreciation rights or similar securities) held by then present or former officers or employees of Holdings, options and convertible debt securities otherwise permitted Company or any of their Subsidiaries or by any Pension Plan upon such person's death, disability, retirement or termination of employment or under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of any such convertible securities and Pension Plan or any other agreement under which such shares of stock or related rights were issued; provided that the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance aggregate amount of such Common Stock);
Cash purchases or redemptions under this paragraph (xiig) when added to the aggregate amount of principal, interest and any other Cash amounts, if any, paid in respect of the Subordinated Management Notes, shall not exceed in any Fiscal Year $500,000; (h) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account Holdings may issue Subordinated Management Notes in lieu of Subordinated Indebtedness to the extent that such payments are permitted Cash purchases and redemptions under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
paragraph (xiiig) so long as no Default or Event of Default shall have occurred hereof and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower (i) Holdings may make Restricted Junior Payments in on the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal YearClosing Date the payments required by the Merger Agreement.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Achievement Corp)
Restricted Junior Payments. No Credit Party shallBorrowers shall not, nor and shall it not permit any of its their Restricted Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that Borrowers may (i) Restricted Junior Payments made by Borrower provided that no Event of Default or Potential Event of Default has occurred and is continuing or would occur immediately after giving effect to such payment, (A) make regularly scheduled payments of interest in respect of any Credit PartySubordinated Indebtedness, Restricted Junior Payments made by (B) make regularly scheduled payments of principal and accrued interest in respect of any Subsidiary Subordinated Indebtedness issued prior to Borrower or the Closing Date, (C) pay Mandatory Redemption Amounts and accrued interest thereon in respect of any other Credit Party Subordinated Indebtedness and Restricted Junior Payments made by any Subsidiary (D) redeem Subordinated Indebtedness from the proceeds of the prior issuance of Subordinated Indebtedness permitted pursuant to subsection 7.1(vi) provided that is not the Subordinated Indebtedness issued to make such redemption payments bears interest at a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare lower rate than the Subordinated Indebtedness so redeemed, in each case in accordance with the terms of, and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to the terms of subordination provisions contained in, the Existing Preferred Stock Approved Indenture pursuant to which such Subordinated Indebtedness was issued, as in effect on such indenture or other agreement may be amended from time to time to the date hereof;
extent permitted under subsection 7.12B, and (ivii) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus pay Permitted Cash Patronage Dividends; (b) the aggregate amount, if any, redeem equity interests of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default patrons or Event of Default shall have occurred and be continuing or shall be caused thereby, Members with cash payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise death of stock options individual patrons or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business Members in an aggregate amount not to exceed $350,000 500,000 per Fiscal Year for all such cash redemptions; and (c) pay dividends on the Company's Preferred Stock in any Fiscal Yearan aggregate annual amount not to exceed $8,000,000.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or except (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iva) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) the Borrower may make regularly scheduled payments of interest in respect of Senior Unsecured Indebtedness in accordance with the form of principalterms of, and only to the extent provided for required by, and the indenture or other agreement pursuant to which any such Indebtedness was issued, (b) the Borrower may make cash payments in accordance with, connection with conversions pursuant to the terms of the Existing Hologic Convertible Notes in effect on the date hereof and (yor other convertible Indebtedness issued as permitted by Section 6.1(n) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as (i) no Default or Event of Default exists before shall have occurred and be continuing or shall be caused thereby and (ii) the 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, in each case, after giving effect to the subject Restricted Junior Payment and reaffirming that the representations and warranties made hereunder are true and complete in all material respects as of such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
date, (vic) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Borrower may purchase Capital Stock or options make regularly scheduled payments of interest in respect of Capital Stock from present 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 former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made other agreement pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of which such Subordinated Indebtedness was issued, (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(viid) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments the Borrower may repurchase, redeem or otherwise acquire 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 account of any Indebtedness incurred issued in connection with such repurchase, redemption or other acquisition) pursuant to Section 6.1(c);
any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement or benefit plan of any kind, (viiie) the Borrower and its Subsidiaries may (i) make Restricted Junior Payments on its Capital Stock that are repurchase Equity Interests which repurchase is deemed to occur upon the any “cashless” exercise of stock options options, warrants or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and other convertible securities, (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xiif) 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 in respect of price protection agreements entered into with sellers under Prior Acquisitions and Permitted Acquisitions, (g) the Borrower may make payments pursuant to the terms of Indebtedness incurred in connection with the settlement of Adverse Proceedings listed on account Schedule 4.11, (h) Equity Interests surrendered to the Borrower or its Subsidiaries in connection with any indemnification or withholding obligation, (i) the Borrower may make cash payments in the form of Subordinated Indebtedness cash settlements with respect to the Spread Overlay Agreements in accordance with the terms thereof, and only to the extent that such payments are permitted under any intercreditor agreement or subordination agreementrequired thereby, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default the Borrower receives contemporaneously with or Event within ninety (90) days preceding such distribution aggregate cash payments in connection with such Spread Overlay Agreements of Default shall have occurred not less than the amount of such distribution and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Year(j) as set forth on Schedule 6.4 hereof.
Appears in 1 contract
Restricted Junior Payments. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, 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) agree to declare, order, pay or make any Restricted Junior Payment cash payment in respect of any purchase or set apart repurchase through negotiated or open market transactions of any sum for any Restricted Junior Payment, except:
Convertible Notes (i) Restricted Junior Payments made by Borrower not more than 18 months prior to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower a Convertible Note Put Date in respect thereof or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare at any time on and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on after the date hereof;
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 shall have occurred and be continuing or shall be caused thereby, (ivd) 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 (xor any restricted stock units) regularly scheduled 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, 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 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 principalcash settlements with respect to the Spread Overlay Agreements in accordance with the terms thereof, and only to the extent provided for byrequired thereby, and in accordance with, so long as the terms of the Existing Notes in effect on the date hereof and Company receives contemporaneously with or within ninety (y90) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (days preceding such approval not to be unreasonably withheld or delayed);
(v) distribution aggregate cash payments in respect connection with such Spread Overlay Agreements of accrued but unpaid interest 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 extent expressly provided for by, and in accordance with, the terms and conditions Notes Escrow Arrangement or (ii) defeasance and/or discharge of the Existing Notesapplicable Junior Financing as permitted or contemplated under the definition of Permitted Refinancing), as (h) the Company or any Subsidiary may make payments or distributions to dissenting stockholders pursuant to applicable law, pursuant to or in effect on connection with a consolidation, merger or disposition of assets that complies, if applicable, with the date hereofprovisions of this Agreement, (i) so long as no Default or Event of Default exists before shall have occurred and be continuing, the Company or after giving effect any Subsidiary may purchase, redeem or acquire its outstanding Equity Interests or any Indebtedness with the Net Equity Proceeds received from a substantially concurrent issuance of 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 such payment and occur upon exercise of stock options, warrants or 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 the extent required 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 equity awards and (ii) the amount of withholding Taxes owed by the terms recipient of the Existing Notes as such award in effect on the date hereof;
respect of such grant, exercise, vesting or lapse of restrictions covered by clause (vii), (k) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower any Loan Party or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the may make other Restricted Junior Payments in an aggregate cash amount of payments made pursuant to this Section 6.4(vi) during in any Fiscal Year shall not to exceed in the aggregate the sum of (ai) $500,000 125,000,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make the Available Amount with respect to such Fiscal Year; provided that such amount shall be unlimited if (1) the Net Senior Secured Leverage Ratio is less than or equal to 3.504.00:1.00 and (2) there is no continuing Default and (iii) (l) any Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans Payment made to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, effect or in exchange for, a substantially contemporaneous issuance furtherance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal YearReorganization.
Appears in 1 contract
Samples: Refinancing Amendment (Hologic Inc)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay or make any Restricted Junior Payment 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) agree payments in respect of Adequate Protection Claims to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
the extent authorized by the Bankruptcy Court; provided that payments of regularly scheduled interest shall be permitted (i) Restricted Junior Payments made by Borrower with respect to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party post-petition Indebtedness and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably with respect to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock pre-petition Indebtedness to the extent required authorized by the terms an order of the Existing Preferred Stock as in effect 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 date hereof;
(iv) so long as no Default or Event proceeds of Default shall have occurred and be continuing or shall be caused therebysuch disposition. Notwithstanding the foregoing, (x) regularly scheduled payments in the form of principalfollowing, to the extent provided for by, and in accordance with, the terms not covered by an existing order of the Existing Notes in effect on US and Canadian Courts, shall be permitted:
(1) 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 date hereof and (y) voluntary prepayments provision of the Existing Notes, subject services by unaffiliated third parties to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed)Abitibi Entities;
(v2) cash payments to, or on behalf of, ABH solely to permit ABH to pay its reasonable accounting, legal and administrative expenses when due, in respect of accrued but unpaid interest an aggregate amount in any Fiscal Year not to the extent expressly provided for by, and in accordance with, the terms and conditions exceed 50% of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment amount of such directorexpenses incurred by ABH during such Fiscal Year; provided, officer, consultant or employee; provided that the aggregate cash amount of such payments permitted to be made pursuant to this Section 6.4(vi) during any Fiscal Year shall be increased by the amount of such expenses allocated by ABH to Bowater Incorporated, Bowater Newsprint South LLC or any 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 further, that the aggregate amount of such payments made in reliance on the preceding proviso after the Effective Date shall not exceed in the aggregate the sum of (ax) $500,000 15,000,000 plus (by) the excess (if any) of (i) the aggregate amount, if any, amount of Restricted Junior Payments payments permitted to be made, but not made, made pursuant to this Section 6.4(viclause (2) during in all previous Fiscal Years over (ii) the immediately preceding aggregate amount of payments actually made pursuant to this clause (2) in all previous Fiscal Year;Years (in each case without giving effect to the provisos thereto); and
(vii3) for so long as no Default any Abitibi Entity is a member of a group filing a consolidated or Event of Default shall have occurred and be continuing or shall be caused therebycombined tax return with ABH (each an “Applicable Abitibi Entity”), payments on account to ABH in respect of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans ABH’s consolidated tax liability that is attributable to the extent Applicable Abitibi Entities (“Tax Payments”); provided that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities Tax Payments shall not exceed the taxes (including warrantsany penalties and interest) that would have been payable by the Abitibi Entities as a stand-alone group, options taking into account any carryovers and convertible debt securities otherwise permitted under Section 6.1carrybacks of tax attributes (such as net operating losses) into of the Abitibi Entities from other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yeartaxable years.
Appears in 1 contract
Samples: Guaranty and Undertaking Agreement (AbitibiBowater Inc.)
Restricted Junior Payments. No Credit Party shallCompany and Borrowers shall not, nor and shall it not permit any of its and their Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi(A) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower Company may (i) make Holdings Ordinary Course Payments to the extent then due and payable, so long as Holdings applies the amount of any such Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if Payment for such Capital Stock represents a portion of the exercise price of such options or warrants and purpose; (ii) make Restricted Junior Payments to Holdings for purchases of Common Stock of Holdings in connection with the retention administration of Capital Stock Holdings’ employee benefits program and repurchases of employee shares, (iii) make regularly scheduled payments of interest in payment respect of withholding taxes any Subordinated Indebtedness (including the Existing BSN Senior Subordinated Notes) in connection accordance with equity-based compensation plans the terms of, and only to the extent that net share settlement arrangements are deemed 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 repurchases;
amended from time to time to the extent not prohibited by subsection 6.12A; provided, in the case of Company’s intercompany note to Holdings, such payments of interest shall be limited to non-cash payments on a basis consistent with past practices and (ixv) the conversion make, and Subsidiaries of convertible securities (including warrantsCompany may make, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (payments of intercompany indebtedness other than Disqualified Stockpayments of Company’s intercompany Indebtedness to Holdings and (B) pursuant BSN and its Subsidiaries may use the proceeds of the French Tranche C3 Term Loans to make BSN Change of Control Payments on the terms BSN Change of such convertible securities 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 cash in lieu any Restricted Junior Payments to Holdings for the purposes of fractional shares in connection therewith;
Holdings making a dividend payment under clause (x) Restricted Junior of Holdings Ordinary Course Payments deemed to occur upon definition within 60 days after the settlement declaration of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock the dividend by Holdings, if at such date of Borrower or made using declaration, the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance making of such Common Stock);
(xii) so long as no Default or Event payment would not have been in violation of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearthis subsection.
Appears in 1 contract
Samples: Secured Credit Agreement (Owens Illinois Group Inc)
Restricted Junior Payments. No Credit Party shallCompany and Borrowers shall not, nor and shall it not permit any of its and their Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi(A) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred Company and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower its Subsidiaries may (i) make Holdings Ordinary Course Payments to the extent then due and payable, so long as Holdings applies the amount of any such Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if Payment for such Capital Stock represents a portion of the exercise price of such options or warrants and purpose; (ii) make Restricted Junior Payments to Holdings for purchases of Common Stock of Holdings in connection with the retention administration of Capital Stock Holdings’ employee benefits program and repurchases of employee shares; (iii) make regularly scheduled payments of interest in payment respect of withholding taxes any Subordinated Indebtedness (including the BSN Senior Subordinated Notes) in connection accordance with equity-based compensation plans the terms of, and only to the extent that net share settlement arrangements are deemed 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 repurchases;
amended from time to time to the extent not prohibited by subsection 6.12A; provided, in the case of Company’s intercompany note to Holdings, such payments of interest shall be limited to non-cash payments on a basis consistent with past practices and (ixv) the conversion make payments of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (intercompany indebtedness other than Disqualified Stockpayments of Company’s intercompany Indebtedness to Holdings and (B) pursuant to Company and its Subsidiaries may redeem, repurchase or otherwise repay the terms BSN Senior Subordinated Notes with the proceeds of such convertible securities and Indebtedness incurred under subsection 6.1(xv). The provisions of this subsection 6.5 shall not be breached by the payment of cash in lieu any Restricted Junior Payments to Holdings for the purposes of fractional shares in connection therewith;
Holdings making a dividend payment under clause (x) Restricted Junior of Holdings Ordinary Course Payments deemed to occur upon definition within 60 days after the settlement declaration of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock the dividend by Holdings, if at such date of Borrower or made using declaration, the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance making of such Common Stock);
(xii) so long as no Default or Event payment would not have been in violation of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearthis subsection.
Appears in 1 contract
Restricted Junior Payments. No Credit Loan Party shall, nor and no Loan Party shall it permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:; provided that
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options make Restricted Junior Payments to Holdings to permit Holdings to (A) issue additional Subordinated Notes, (B) make annual cash payments of interest in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) the Subordinated Notes on March 31 of Borrower or any Subsidiary upon each Fiscal Year for the death, disability, retirement, severance, or termination preceding Fiscal Year in accordance with the terms of employment of such director, officer, consultant or employee; provided that the aggregate cash Subordinated Note Indenture in an amount not greater than the amount of payments made pursuant to this Section 6.4(vi) during Supplemental Excess Cash Flow for such preceding Fiscal Year; PROVIDED, that in no event shall the amount of cash interest paid in respect of the Subordinated Notes for any Fiscal Year shall not exceed the amount of accrued and unpaid interest on the Subordinated Notes for such Fiscal Year or (C) make a cash payment to the holders of Subordinated Notes in lieu of rounding up any additional Subordinated Notes to the aggregate the sum nearest $1.00 or issuing fractional shares of (a) $500,000 plus (b) the aggregate amount, if any, common stock of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal YearHoldings;
(viiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or may make Restricted Junior Payments to 105 114 Holdings (a) to the extent necessary to permit Holdings to pay general administrative costs and expenses substantially as set forth in the Budget then due and payable in the ordinary course of business of Holdings in an amount not substantially greater than that provided in the Budget 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 Subsidiary of such Restricted Junior Payment for such purpose;
(iii) Borrower's Subsidiaries may pay dividends to Borrower and its Wholly-Owned Subsidiaries;
(iv) Borrower may make Restricted Junior Payments to enable Holdings to satisfy liabilities assumed by Holdings in the ordinary course Reorganization Plan to the extent that such liabilities are then due and payable and to the extent Holdings applies the proceeds of business such Restricted Junior Payments, upon receipt, to the satisfaction of such liabilities; and
(v) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby and subject to the consent of the Agents (which consent shall not be unreasonably withheld), Borrower may purchase, redeem, acquire or otherwise retire for value shares of Capital Securities of Borrower held by directors, officers or employees of Holdings or any of its Subsidiaries, or warrants or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates or beneficiaries under their estates), in an aggregate amount not all cases only upon death, disability, retirement, termination of employment or pursuant to exceed $350,000 in the terms of such stock option plan or any Fiscal Yearother agreement under which such shares of Capital Securities, options, related rights or similar securities were issued or under which they may be put or called.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or provided that Company may make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptPayments:
(i) Restricted Junior Payments made by Borrower to Holdings in an aggregate amount not to exceed Cdn. $1,000,000 in any Credit PartyFiscal Year, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party the extent necessary to permit Holdings to pay general administrative costs and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;expenses,
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) Holdings so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in an aggregate amount not to exceed Cdn.$2,000,000 in any Fiscal Year, or Cdn. $10,000,000 during the form term of principalthis Agreement, for distribution to Parent to the extent provided for by, and in accordance with, necessary to permit Parent to repurchase shares of Parent Common Stock (or options or warrants to acquire Parent Common Stock) from employees of Company pursuant to the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notesexisting employee stock ownership plans as such plans may be modified, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld supplemented or delayed)replaced as approved by Agents, acting reasonably;
(viii) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, Holdings so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directorsto the extent necessary to permit Holdings to discharge its tax liabilities, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon so long as Holdings applies the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant any such Restricted Junior Payment for such purpose;
(iv) to this Section 6.4(vipurchase, repurchase, repay or redeem the Senior Second Lien Secured Notes, the New Preferred Stock or, if at least 75% of the original principal amount of the Senior Second Lien Secured Notes have been repaid, repurchased or redeemed, the Holdings Preferred Stock, in each case with Net Securities Proceeds from a Qualifying IPO;
(v) during any Fiscal Year shall not exceed in Company may purchase, repurchase, redeem or otherwise retire the aggregate the sum of Series A Preferred Stock;
(a) $500,000 plus (bvi) the aggregate amountSeries B Preferred Stock may be canceled in connection with the consummation of the transactions under the Contribution Agreement, if any, and the holders of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vithe Series B Preferred Stock may receive common shares of the Company (as amalgamated) during the immediately preceding Fiscal Yearin exchange therefor;
(vii) so long as no Default Company may, on or Event after the Amalgamation, convert the Holdings Preferred Stock to common shares of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);the Company; and
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous an exchange of shares or use of proceeds or pursuant options to a repurchase plan established substantially contemporaneously with effect the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal YearAmalgamation.
Appears in 1 contract
Restricted Junior Payments. “No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment; provided that, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) LLC may make Restricted Junior Payments made by Borrower to any Credit PartyHoldings, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments Holdings may make Restricted Junior Payments in the form of principal, order for Holdings to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld repurchase or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect redeem outstanding shares of Capital Stock from present (or options to purchase Capital Stock) of Holdings owned by current or former directorsemployees, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) directors of Borrower Holdings or any Subsidiary upon the deathof its Subsidiaries pursuant to any management equity subscription agreement, disabilitystock option agreement or similar equity agreement, retirementshareholders agreement or benefit plan, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made all Restricted Junior Payments paid pursuant to this Section 6.4(visubclause (ii) during in any Fiscal Year shall not exceed $50,000 plus the amount of 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 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 sum 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 (a) $500,000 plus (b) the aggregate amountexcess, if any, of Restricted Junior Payments permitted to be made, but such amount for the previous Fiscal Year and not made, pursuant to any year before the previous Fiscal Year (as adjusted in accordance with this Section 6.4(viproviso) during over the immediately preceding 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
(vii2.7. Section 5.1(c) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants Second Lien Credit Agreement is amended and (ii) make Restricted Junior Payments restated in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long its entirety as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Year.follows:
Appears in 1 contract
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that (i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Event of Default or -------- Potential Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments Company may make Restricted Junior Payments to 133 Holdings in the form of principalan aggregate amount not to exceed $50,000 in any Fiscal Year, to the extent provided for bynecessary to permit Holdings to pay general administrative costs and expenses, (ii) Contico may make dividends and in accordance with, the terms distributions to Company on account of the Existing Notes in effect on Contico Common Units and, so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby and so long as such payments are permitted under the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, Contico LLC Agreement as in effect on the date hereof, so long Contico may make Priority Return payments (as no Default or Event of Default exists before or after giving effect to such payment and to defined in the extent required by the terms of the Existing Notes as 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, (viiii) 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 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 purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower Company may make Restricted Junior Payments to K&C or K&C's Affiliates to the extent necessary to pay Company's obligations under any Kohlberg Agreement entered into by Company after the Closing Date in the ordinary course of business accordance with subsection 7.12, as it may be amended from time to time in an aggregate amount not to exceed $350,000 in any Fiscal Yearaccordance with subsection 7.12.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or Payment except that (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:a)
(i) Restricted Junior Payments made by Borrower to any Credit PartyHoldings may make regularly scheduled payments of interest in respect of the Holdings Notes in accordance with the terms of, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, the terms agreement or instruments pursuant to which the Holdings Notes was issued and (ii) Company 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 Existing Preferred Stock as in effect on the date hereof;
amount of any such Restricted Junior Payment for such purpose, (ivb) so long as no Default or Event of Default under Section 8.1(a) shall have occurred and be continuing or shall be caused thereby, Company may make Restricted Junior Payments to Holdings (xi) regularly sufficient to make scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect interest on the date hereof Holdings Notes then due and (y) voluntary prepayments of the Existing Notesowing; provided that, subject to the prior approval of the Administrative Agent and Requisite Lenders (no such approval not to Restricted Junior Payment may be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or made unless after giving effect to such payment payment, (A) the Leverage Ratio does not exceed 2.0:1.0 and to (B) the extent required by the terms ratio of the Existing Notes as in effect on the date hereof;
(viI) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that Consolidated Total Debt plus the aggregate cash principal amount of payments made pursuant outstanding Holdings Notes to this Section 6.4(vi(II) during any Consolidated Adjusted EBITDA for the four Fiscal Year Quarter period most recently ended shall not exceed in the aggregate the sum of 3.00:1.00, (ac) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower Company may make Restricted Junior Payments to Holdings to make payments under the Management Agreement and Holdings or Company may make payments in accordance with the ordinary course terms of business the Management Agreement; (d) Holdings or Company may make Restricted Junior Payments in an aggregate amount not to exceed $350,000 3,500,000 in any Fiscal YearYear to the extent necessary to make repurchases of Securities (and options or warrants to purchase such Securities) of Holdings from employees (i) upon termination (including by reason of death, disability or retirement) of such employees or (ii) pursuant to a contractual obligation of Holdings or Company, (e) Company may make Restricted Junior Payments to Holdings to the extent necessary to permit Holdings to pay reasonable accounting, legal, SEC related, and similar fees, expenses and costs, expenses and indemnities payments to directors or members of board of managers of Holdings, and (f) Company and Holdings may make Restricted Junior Payments to the extent necessary to accomplish the payment of the Transaction Costs.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Vought Aircraft Industries Inc)
Restricted Junior Payments. No Credit Party shallThe Company shall not, nor and shall it not permit any of its the Company's Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that (i) Restricted Junior Payments made by Borrower to the Company may make regularly scheduled payments of interest in respect of any Credit PartySubordinated Indebtedness in accordance with the terms of, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to the terms of subordination provisions contained in the Existing Preferred Stock indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as in effect on such indenture or other agreement may be amended from time to time to the date hereof;
extent permitted under Section 7.11B, and (ivii) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby:
(a) the Company may redeem or repurchase Capital Stock or options, warrants or other rights therefor (collectively, "EQUITY INTERESTS") from (i) officers, employees and directors of the Company or any Subsidiary (or their estates) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option plan or any employee stock ownership plan maintained by the Company or any of its Subsidiaries and (ii) other holders of Capital Stock in the Company so long as the purpose of such purchase is to acquire common stock for reissuance to new officers, employees and directors (or their estates) of the Company or any Subsidiary to the extent so reissued within 12 months after any such purchase; provided that in all such cases (x) regularly scheduled payments in the form no Potential Event of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before is then in existence or after giving effect to such payment and to would otherwise arise therefrom (y) the extent required by the terms aggregate amount of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options all cash paid in respect of Capital Stock all such shares so redeemed or repurchased less net cash proceeds from present the sale of any such redeemed or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall repurchased shares does not exceed $5,000,000 in the aggregate from and after the sum of (a) $500,000 plus First Closing Date;
(b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during Company may pay dividends on the immediately preceding Fiscal Year;Purchased Preferred Stock in accordance with the terms thereof as in effect at the First Closing Date; and
(viic) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower the Company may pay (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants First Closing Dividends and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans additional dividends to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options R. Mxxxxxx Xxxxxx and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business Dxxxx X. Xxxxxxxx in an aggregate amount not to exceed $350,000 in 2,935,000 at any Fiscal Yeartime following the refinancings of the GE Facility and the Ocean Bank Facility.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptexcept the following shall be permitted:
(ia) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party[Reserved];
(iib) Borrower Company may declare make regularly scheduled payments (but not voluntary prepayments) in respect of (i) the New Company Subordinated Notes in accordance with the terms of, and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval subordination provisions contained in, the New Company Subordinated Note Indenture and (ii) any repurchase or repayment of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect New Company Subordinated Notes with the proceeds of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions any refinancing of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing New Company Subordinated Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to under Section 6.1(c);
(viiic) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases[Reserved];
(ixd) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith[Reserved];
(xe) Restricted Junior Payments deemed to occur upon the settlement Subsidiaries of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower 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 ordinary course 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 business its Subsidiaries may issue Indebtedness pursuant to Section 6.1(p) and may make regularly scheduled payments in an 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 to exceed $350,000 750,000 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
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior PaymentPayment except that, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptwithout duplication:
(ia) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) of Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iiib) Borrower Non-Recourse Subsidiaries may declare and pay dividends, whether dividends or make other distributions to their equity holders ratably or otherwise in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereofaccordance with their organizational documents and non-recourse project financing documents;
(ivc) so long as 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, and after giving effect thereto, (1) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (2) Borrower shall be caused therebyin 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) regularly scheduled payments in the form no Event of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof Default shall exist or result therefrom and (y) voluntary prepayments the Borrower shall be in pro forma compliance with the covenant set forth in Section 6.7(b) as of the Existing Notes, subject to the prior approval last day of the Administrative Agent and Requisite Lenders (most recently ended Fiscal Quarter preceding such approval not to be unreasonably withheld or delayed)cash payment;
(vg) cash payments in respect the repurchase, redemption or other acquisition or retirement for value of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions any Equity Interests of the Existing Notes, as in effect on the date hereof, so long as no Default Holdings or Event of Default exists before or after giving effect to such payment and to the extent required Parent held by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present any current or former directorsofficer, officersdirector, consultants, employee or employees (or their respective spouses, ex-spouses, or estates) consultant of Borrower Holdings or any Subsidiary upon of its Subsidiaries or the deathParent pursuant to any equity subscription agreement, disabilitystock option agreement, retirementrestricted stock grant, severance, shareholders’ agreement or termination of employment of such director, officer, consultant or employeesimilar agreement; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall 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 increased by an amount not to exceed the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may cash proceeds from (i) make Restricted Junior Payments on 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 Capital Stock that are deemed to occur upon Subsidiaries or the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants Parent and (ii) make Restricted Junior Payments key man life insurance policies received by Holdings or any of its Subsidiaries in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans such calendar year; and
(h) cash distributions to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion holders of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms Equity Interests of such convertible securities and the payment of cash Holdings in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds respect of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments paid in the ordinary course of business quarter subsequent to, Holdings’ fiscal quarters ending September 30, 2015 and December 31, 2015, in accordance with its Organizational Documents, in an aggregate amount not to exceed (i) $350,000 33 million in any respect of the Fiscal YearQuarter ending September 30, 2015 and (ii) $50 million in respect of the Fiscal Quarter ending December 31, 2015.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Terraform Global, Inc.)
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except; except that:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower Company may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock payments on the Existing Preferred Stock to Subordinated Notes and in respect of any of the extent Additional Subordinated Indebtedness as required by the terms of the Existing Preferred Stock as 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, Existing Subordinated Notes; provided that (a) at the time of such purchase or repurchase, no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby 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 9-3/8% Subordinated Notes and the 10-3/8% Subordinated Notes on the date hereofmaturity dates thereof strictly in accordance with the terms of the 9-3/8% Subordinated Note Documents and the 10-3/8% Subordinated Note Documents, respectively; provided, that (a) at the time of such redemption, no Event of Default or Potential Event of 114 Default has occurred and is continuing or would be caused thereby 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 Company may pay dividends or make other distributions to Company with respect to Company's ownership interest in such Subsidiary;
(iii) Company may pay dividends or make other distributions with respect to the Convertible Preferred Stock, but only so long as, both before and after giving effect to such dividend or distribution, no Potential Event of Default or Event of Default has occurred and is continuing;
(iv) so long as Company may repurchase, in one or a series of transactions, Convertible Preferred Stock and Exchangeable Preferred Stock and may purchase or repurchase Company Common Stock in the market; provided that:
(a) at the time of any such purchase or repurchase, no Default or Event of Default shall have or Potential Event of Default has occurred and be is continuing or shall would be caused thereby;
(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;
(c) in the case of any such repurchase of Convertible Preferred Stock, the fair market value at the time of such repurchase of the Company Common Stock into which any such Convertible Preferred Stock is convertible is at least 125% of the consideration for such repurchase of Convertible Preferred Stock;
(d) the aggregate cumulative amount of payments made by Company since the date hereof to so repurchase Convertible Preferred Stock and Company Common Stock does not exceed $20,000,000;
(e) subject to subsection 7.5(v), the aggregate cumulative amount of payments made by Company since the date hereof to so repurchase Convertible Preferred Stock, Exchangeable Preferred Stock and Company Common Stock does not exceed $25,000,000; and
(f) (x) regularly scheduled payments at the time of each such repurchase of Exchangeable Preferred Stock and Company Common Stock, the ratio of Consolidated Total Debt to Consolidated Broadcast Cash Flow as calculated pursuant to subsection 7.6A is not greater than 6.25:1.00 and (y) immediately after giving effect to each such repurchase Company can demonstrate on a Pro Forma Basis that the 115 ratio of Consolidated Total Debt to Consolidated Broadcast Cash Flow as calculated pursuant to subsection 7.6A is not greater than 6.25:1.00; provided further however that (1) Company may make repurchases pursuant to clause (e) above in an aggregate cumulative amount in excess of $25,000,000 but not greater than $40,000,000 if before and after giving effect to any such repurchase the form ratio of principalConsolidated Total Debt to Consolidated Broadcast Cash Flow as calculated pursuant to subsection 7.6A does not exceed 5.75:1.00 and, to the extent provided that at the time such repurchase is made the maximum ratio of Consolidated Total Debt to Consolidated Broadcast Cash Flow for bythe applicable period then in effect pursuant to subsection 7.6A is greater than 5.75:1.00, such maximum ratio pursuant to subsection 7.6A for the applicable period then in effect shall (if and only if Company actually makes any such repurchase in excess of such $25,000,000 amount) be reset at 5.75:1.00 for such period and continuing until the commencement of the next period requiring compliance by Company with a maximum ratio lower than 5.75:1.00 pursuant to subsection 7.6A, and (2) Company may make repurchases pursuant to clause (e) above in accordance withan aggregate cumulative amount in excess of $40,000,000 but not greater than $50,000,000 if before and after giving effect to any such repurchase the ratio of Consolidated Total Debt to Consolidated Broadcast Cash Flow as calculated pursuant to subsection 7.6A does not exceed 5.50:1.00 and, to the terms extent that at the time such repurchase is made the maximum ratio of Consolidated Total Debt to Consolidated Broadcast Cash Flow for the applicable period then in effect pursuant to subsection 7.6A is greater than 5.50:1.00, such maximum ratio pursuant to subsection 7.6A for the applicable period then in effect shall (if and only if Company actually makes any such repurchase in excess of such $40,000,000 amount) be reset at 5.50:1.00 for such period and continuing until the commencement of the Existing Notes next period requiring compliance by Company with a maximum ratio lower than 5.50:1.00 pursuant to subsection 7.6A; provided still further, however that any payments made by Company pursuant to subsection 7.5(viii) shall not be counted towards the limitations set forth in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayedthis subsection 7.5(iv);
(v) cash payments in Company may pay dividends with respect of accrued but unpaid interest to the Exchangeable Preferred Stock to the extent expressly provided for by, and in accordance with, required or permitted pursuant to the terms and conditions of the Existing NotesThird Amended and Restated Certificate of Incorporation and the applicable Certificate of Designations; provided that, as if Company desires to exercise its option under the Third Amended and Restated Certificate of Incorporation and applicable Certificate of Designations to pay such dividends in effect on cash rather than through the date hereofissuance of additional Exchangeable Preferred Stock, Company may pay such cash dividends only so long as (a) both before and after giving effect to such dividend, no Potential Event of Default or Event of Default exists before or has occurred and is continuing, (b) immediately after giving effect to such payment dividend, Company is in compliance on a Pro Forma Basis with all covenants set forth in Section 6 and 7 of this Agreement and (c) after giving effect to such dividend, the ratio of Consolidated Total Debt to Consolidated Broadcast Cash Flow as calculated pursuant to subsection 7.6A is not greater than 5.50:1.00, or, to the extent required the ratio of Consolidated Total Debt to 116 Consolidated Broadcast Cash Flow as calculated pursuant to subsection 7.6A is greater than 5.50:1.00, then the aggregate cumulative amount of such cash dividends shall be counted against the Dollar limitations for repurchases permitted pursuant to 7.5(iv)(e), as modified by the terms last proviso of the Existing Notes as in effect on the date hereofsubsection 7.5(iv);
(vi) so long as Company may cancel any Convertible Preferred Stock, Exchangeable Preferred Stock or Company Common Stock repurchased pursuant to this subsection 7.5;
(vii) if no Potential Event of Default or Event of Default shall have has occurred and be is continuing or shall be caused therebyand Company has declared a dividend with respect to its Exchangeable Preferred Stock, Borrower to the extent that such dividend would result in the issuance of fractional shares, Company may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment pay that part of such director, officer, consultant or employee; provided that the aggregate dividend in cash amount instead of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c)issuing such fractional shares;
(viii) Borrower Company may (i) make Restricted Junior Payments redeem the Convertible Preferred Stock on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion final mandatory redemption date thereof strictly in accordance with the terms of the exercise price Third Amended and Restated Certificate of Incorporation and applicable Certificate of Designations; provided that at the time of such options redemption, (a) no Event of Default or warrants Potential Event of Default has occurred and is continuing or would be caused thereby and (iib) make Restricted Junior Payments immediately after giving effect to such redemption, Company is in connection compliance on a Pro Forma Basis with the retention all covenants set forth in Sections 6 and 7 of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;this Agreement; and
(ix) notwithstanding anything in this subsection 7.5 to the conversion contrary but subject to the limitation set forth in the final sentence of convertible securities this subsection 7.5, Company may make any Restricted Junior Payment with any Equity Proceeds (including warrantswhich Restricted Junior Payments shall not be counted towards any limitations set forth in clauses (i) through (viii) above); provided that (a) at the time of any such Restricted Junior Payment, options no Event of Default or Potential Event of Default has occurred and convertible debt securities is continuing or would be caused thereby, (b) immediately after giving effect to each such Restricted Junior Payment, Company is in compliance on a Pro Forma Basis with all covenants set forth in Section 6 and 7 of this Agreement and (c) such Restricted Junior Payment is otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of the Related Documents. It is understood and agreed that, except as set forth in clause (iv) of this subsection, Company shall not make any Restricted Junior Payment in respect of any redemption, purchase or other acquisition of any shares of any class of Convertible Preferred Stock, including, without limitation, in connection with any ``Change of Control'' (as such convertible securities and term is defined in the documentation governing each such class of Convertible Preferred Stock) which would otherwise entitle the holders of any shares of Convertible Preferred Stock to require Company to redeem, purchase or otherwise acquire such shares, other than through the issuance by Company of shares of any Non-Restricted Capital Stock to such holders in payment of cash in lieu such shares of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Convertible Preferred Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Year.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor Company shall it permit any of its Subsidiaries tonot, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary ; provided that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, :
(xi) Company may make regularly scheduled interest payments in respect of the form Existing Senior Notes and any Additional Notes in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions, if any, contained in, the Existing Senior Note Indentures or any indenture or indentures pursuant to which any Additional Notes are issued;
(ii) Company may declare and pay regularly scheduled dividends in respect of principalthe Existing Preferred Stock, provided that (a) the Leverage Ratio is equal to or less than 5.0:1.0, and (b) Company shall be in compliance with each covenant under subsection 6.6 after giving pro forma effect to such dividend;
(iii) Company may (a) repurchase or redeem outstanding Capital Stock of Company with the net proceeds received by Company from the issuance of its Capital Stock of the same class or Capital Stock which is junior to the Capital Stock being repurchased or redeemed, provided that notwithstanding any other provision in this Agreement to the contrary, to the extent provided for by, and in accordance with, the terms proceeds of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect any issuance of Capital Stock from present are used to repurchase or former directorsredeem outstanding Capital Stock in accordance with this subsection 6.5(iii)(a), officerssuch Capital Stock shall not constitute Required Junior Capital, consultantsQualified Additional Capital or Subsequent Junior Capital, (b) make Cash Payments to repurchase or employees (redeem fractional shares of Capital Stock in connection with a repurchase or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made redemption permitted pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of clause (a) $500,000 plus of this subsection 6.5(iii), and (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (ic) make Restricted Junior Cash Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion in lieu of the exercise price issuance of such options or warrants and (ii) make Restricted Junior Payments fractional shares of preferred stock in connection with the retention of Capital Stock in payment of withholding taxes in connection with equitypay-based compensation plans to in-kind dividends on the extent that net share settlement arrangements are deemed to be repurchases;
(ix) preferred stock; provided the conversion aggregate amount of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) Cash Payments made pursuant to the terms clauses (b) and (c) of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(xthis subsection 6.5(iii) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements shall not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 200,000 in any Fiscal Year; and
(iv) 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 defease Indebtedness of Company and its Restricted Subsidiaries, provided that notwithstanding any other provision in this Agreement to the contrary, to the extent the proceeds of any Additional Notes are used to redeem, repurchase or defease Indebtedness of Company and its Restricted Subsidiaries in accordance with this subsection 6.5(iv), such Additional Notes shall not constitute Required Junior Capital, Qualified Additional Capital or Subsequent Junior Capital.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shallThe Borrower will not, nor shall will it permit any of its Subsidiaries Subsidiary to, directly or indirectly (x) declare, orderindirectly, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(a) (i) Restricted Junior Payments made so long as no Event of Default has occurred and is continuing or would be caused thereby, redemptions and repurchases by the Borrower 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) make all regularly scheduled payments of principal, interest, fees and premiums and all payments of 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) 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 PartyParty 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 Section 6.1 (including any Permitted Refinancing thereof) and (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 Junior Payments made Equity Payment by any Subsidiary to of the Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not on a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably ratable basis to its equity holders;
(iiif) Borrower may declare and pay dividends, whether Restricted Junior Payments in Cash or Common Stock, an aggregate amount not to holders of Existing Preferred Stock on exceed the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock Available Amount as in effect on immediately before such Restricted Junior Payment; provided that (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the date hereofTotal Net Leverage Ratio at the time of (and after giving effect to) the making such Restricted Junior Payment is less than or equal to 4.00:1.00;
(ivg) Restricted Junior Payments, so long as (i) no Default or Event of Default has occurred and is continuing at such time or would result after giving effect to such Restricted Junior Payment and (ii) the Total Net Leverage Ratio at the time of making such Restricted Junior Payment (taking into account the making of such Restricted Junior Payment and the use of proceeds thereof) is less than or equal to 3.00:1.00;
(h) Restricted Debt Payments in respect of the Convertible Senior Notes utilizing solely any or all of the following (at the Borrower’s election): (I) proceeds of the Delayed Draw Term Loans (or, in the event that the conditions to borrowing the Delayed Draw Term Loans are not satisfied at the time of such Restricted Debt Payment, proceeds of other Pari Passu Lien Indebtedness permitted to be incurred hereunder), (II) proceeds of any Junior Financing permitted to be incurred hereunder, (III) common stock of the Borrower or proceeds of any issuance of common stock of the Borrower and/or (IV) so long as no Event of Default has occurred and is continuing or would result therefrom, cash on hand; and
(i) as long as no Default or Event of Default shall have has occurred and be is continuing at such time or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or would result after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused therebythereto, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 10,000,000. For purposes of determining compliance with this Section 6.4:
(1) the amount set forth in Section 6.4(i) (without duplication) may, in lieu of Restricted Junior Payments, be utilized by the Borrower or any Subsidiary to make or hold any Investments without regard to Section 6.6;
(2) for the avoidance of doubt, if the Borrower or any Subsidiary makes any Restricted Junior Payment 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 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 Agreement; and
(4) in the event that any Restricted Junior Payment (or any portion thereof) meets the criteria of more than one of the clauses of this Section 6.4, the 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 (or any portion thereof) in any Fiscal Yearmanner that complies with this covenant.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shallSubsection 7.5 shall be amended by deleting in its entirety and substituting the following therefor: "Company shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that Company may (i) Restricted Junior Payments made by Borrower to any Credit Partymake regularly -------- scheduled payments of principal and interest in respect of the Unsecured Subordinated Notes in accordance with the terms of, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to the terms of subordination provisions contained in the Existing Preferred Stock Unsecured Subordinated Note Indenture, as in effect on the date hereof;
Unsecured Subordinated Note Indenture may be amended from time to time to the extent permitted under subsection 7.15, (ivii) make, so long as no Potential Event of Default or Event of Default shall have occurred and be continuing continuing, payments to purchase Company Common Stock, Company Preferred Stock or shall be caused therebyoptions, warrants or rights to purchase or acquire Company Common Stock or Company Preferred Stock (x) regularly scheduled and payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but and unpaid interest dividends in connection with any such purchase of Company Preferred Stock) to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default officers or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present employees or former directors, officers, consultants, officers or employees (or their respective spousestrusts, ex-spouses, estates or estatesestate beneficiaries) of Borrower or any Subsidiary upon the death, disability, retirement, severance, retirement or termination of employment of such director, officer, consultant from Company or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount Subsidiaries not to exceed $350,000 1,000,000 during each fiscal year, plus the amount of any Cash proceeds received by Company ---- from the sale of Company Common Stock or Company Preferred Stock to officers or employees of Company or its Subsidiaries within such fiscal year, provided that in no event shall the aggregate of all such payments -------- made after the Closing Date exceed $5,000,000 plus the amount of any Fiscal YearCash ---- proceeds received by Company from the sale of Company Common Stock or Company Preferred Stock to officers or employees of Company or its Subsidiaries after the Closing Date; and (iii) issue shares of Company Common Stock or Company Preferred Stock (and warrants to purchase Company Common Stock or Company Preferred Stock) in exchange for all of the outstanding shares of the Series A Preferred Stock and Series B Preferred Stock of Company and all accrued dividends thereon."
Appears in 1 contract
Samples: Credit Agreement (Calmar Inc)
Restricted Junior Payments. No Credit Party shallCompany shall not directly or indirectly (i) declare or pay any dividend or make any distribution on Capital Stock of Company or to the holders of its Capital Stock (other than dividends or distributions payable in Company's Common Stock or in shares of Capital Stock of the same class held by such holders or in options, nor shall it warrants or other rights to purchase Company's Common Stock or such Capital Stock) or (ii) purchase, redeem or otherwise acquire or retire for value, or permit any Subsidiary of its Subsidiaries Company to, directly or indirectly 107 114 indirectly, purchase, redeem or otherwise acquire or retire for value, any such Capital Stock of Company (xother than in exchange for Company's Common Stock or options, warrants or other rights to purchase Company's Common Stock or such Capital Stock) declareor (iii) make, orderor permit any Subsidiary to make, pay or make any Investment in any Unrestricted Subsidiary (other than Permitted Investments) (the foregoing actions set forth in clauses (i), (ii) and (iii) being referred to as "RESTRICTED JUNIOR PAYMENTS") if at the time of such Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (ya) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or an Event of Default with respect to Section 9.3 shall have occurred and be continuing or shall be caused therebywould result from the making of such Restricted Junior Payment, or (xb) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, such Restricted Junior Payment is prohibited under the terms of any indentures (as amended from time to time) of Company executed in connection with the Existing Notes in effect Subordinated Securities or other Subordinated Indebtedness (unless such terms are waived by the requisite holders of such securities or indebtedness or such Restricted Junior Payment is consented to by such holders). The restrictions on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, making of Restricted Junior Payments permitted to set forth in clause (b) above shall not be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) applicable so long as no Default or Event the aggregate amount of Default the Subordinated Indebtedness outstanding is less than $250,000,000. For purposes of this subsection 9.2, an Unrestricted Subsidiary shall have occurred and not be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon be a Subsidiary of Company. The provisions of this subsection 9.2 shall not be violated by reason of (x) the exercise payment of stock options or warrants any dividend within 60 days after the date of declaration thereof, if at such Capital date of declaration such payment would comply with the provisions of this subsection 9.2, (y) the payment of dividends on Company's Common Stock represents a portion of up to 6% per annum of the exercise price aggregate net proceeds received by Company in the initial public offering of such options or warrants stock in April, 1990 and any public offerings of such stock subsequent to such initial public offering and (iiz) make Restricted Junior Payments in connection with the retention repurchase of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) Company from Management Investors pursuant to the terms of the subscription and option agreements under which such convertible securities and the payment of cash Management Investors have purchased or will purchase Company's Capital Stock as in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed effect from time to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yeartime.
Appears in 1 contract
Samples: Credit Agreement (Safeway Inc)
Restricted Junior Payments. No The Credit Party shallParties shall not, nor and shall it not permit any of its their respective Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that (i) Restricted Junior Payments made 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 result therefrom: (a) Borrower may make Cash advances (any such advance by Borrower to any Credit Party, Restricted Junior Payments made or direct payment by any Subsidiary to Borrower or any other Credit Party 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 Restricted Junior Payments made customary fees, costs and expenses incurred by any Subsidiary that is Holdings (and not a Credit Party payable to any other Subsidiary that is not a Credit Party;
(iiAffiliates of Holdings) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous public issuance of Common Stock Securities of Borrower Holdings (either provided that each such Holdings Advance is evidenced by way a promissory note (which may consist of a substantially contemporaneous exchange one master note that covers all Holding Advances from time to time) payable on demand by Borrower) and (b) on or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with after the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused therebyapplicable Permitted Dividend Date, Borrower may pay dividends to Holdings or any Subsidiary NewHoldco to permit Holdings or NewHoldco to pay interest, dividends or other coupon in respect of Borrower may make Restricted Junior Payments in the ordinary course of business Permitted Equity Financings in an aggregate amount not to exceed the corresponding amount of interest, dividends or other coupon then due and payable in accordance with the terms (without giving effect to any default, optional condition or other contingency) of such Permitted Equity Financings; and (iii) 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 terminate up to an aggregate of Twenty-Five Million Dollars ($350,000 in any Fiscal Year25,000,000) of the public Securities of Holdings during the term of this Agreement.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shallHoldings and Company shall not, nor and shall it not permit any of its their Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that (i) Restricted Junior Payments made by Borrower to Company may make -------- regularly scheduled payments of interest in respect of any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower Subordinated Indebtedness or any other Credit Party Refinancing thereof in accordance with the terms of, and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to the terms of subordination provisions contained in, the Existing Preferred Stock indenture or other agreement pursuant to which such Subordinated Indebtedness or Refinancing was issued, as in effect on such indenture or other agreement may be amended from time to time to the date hereof;
extent permitted under subsection 7.15B, and (ivii) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower Company may make Restricted Junior Payments in the ordinary course of business to Holdings: (a) in an aggregate amount not to exceed $350,000 100,000 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 any Refinancing thereof when contractually required; provided that after giving effect 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 extent necessary to permit Holdings to discharge the consolidated tax and franchise 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; (d) to the extent necessary to permit Holdings to pay Transaction Costs; and (e) management fees payable to Holdings in an annual aggregate amount not exceeding $50,000 in each calendar year.
Appears in 1 contract
Samples: Credit Agreement (Price Communications Wireless Inc)
Restricted Junior Payments. No Credit Party shallThe Borrower will not, nor shall will it permit any of its Subsidiaries Subsidiary to, directly or indirectly (x) declare, orderindirectly, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(a) (i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have has occurred and be is continuing or shall would be caused thereby, redemptions and repurchases by the Borrower 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 (x) regularly scheduled 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 form immediately succeeding Fiscal Year) the greater of principal(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 provided for by, and in accordance with, not otherwise used under this Agreement or applied to the terms of the Existing Notes in effect on the date hereof Available Amount and (y3) voluntary prepayments the amount of the Existing Notesany cash bonuses or other compensation otherwise payable to any future, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directorsdirector, officersemployee, consultants, consultant or employees (or their respective spouses, ex-spouses, or estates) distributor of the Borrower or any Subsidiary upon that are foregone in return for the death, disability, retirement, severance, or termination redemption of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are of the Borrower; and (ii) cashless repurchases of Capital Stock deemed to occur upon the exercise of stock options options, warrants, settlements or warrants vesting if such Capital Stock stock represents a portion of the exercise price of such options or warrants and thereof;
(iib) make Restricted Junior Payments payments in connection with the retention form of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities Borrower (other than Disqualified Stock) pursuant Capital Stock and to the terms of such convertible securities and extent not otherwise used under this Agreement or applied to the payment of cash Available Amount);
(c) payments in lieu of the issuance of fractional shares in connection therewithwith the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock;
(xd) subject to the terms of any applicable subordination provisions, the Borrower or any Subsidiary may (i) make all regularly scheduled payments of principal, interest, fees and premiums and all payments of 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) 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 Section 6.1 (including any Permitted Refinancing thereof) and (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 deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 the Available Amount as in any Fiscal Year.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, so long as (i) no Default or Event of Default has occurred and is continuing at such time or would result after giving effect to such Restricted Equity Payment or Restricted Debt Payment and (ii) the Total Net Leverage Ratio at the time of making such Restricted Junior Payment (taking into account the making of such Restricted Equity Payment or Restricted Debt Payment and the use of proceeds thereof) is less than or equal to
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay or make any Restricted Junior Payment or set apart any sum for Make any Restricted Junior Payment; provided, or (y) agree to declarehowever, orderthat, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Paymentso long as it is permitted by law, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);would result therefrom,
(va) cash payments in respect of accrued but unpaid interest The Loan Parties may make distributions to the extent expressly provided for byformer consultants, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directorsemployees, officers, consultants, or employees directors of Borrower (or their respective any spouses, ex-spouses, or estatesestates of any of the foregoing) on account of redemptions of Stock of Borrower 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 $1,000,000 in the aggregate in any fiscal year of Borrower,
(b) Borrower may make distributions to former employees, officers, or directors of such Loan Party (or any Subsidiary upon the deathspouses, disability, retirement, severanceex-spouses, or termination estates of employment any of the foregoing), solely in the form of forgiveness of Indebtedness of such director, officer, consultant or employeePersons owing to such Loan Party on account of repurchases of the Stock of such Loan Party held by such Persons; provided that the aggregate cash amount such Indebtedness was incurred by such Persons solely to acquire Stock of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of Borrower.
(a) $500,000 plus (bc) the aggregate amountLoan Parties may purchase, if anyredeem or otherwise acquire shares of their Stock or Warrants or Options to acquire shares of such Stock with the proceeds of any concurrently issued new shares of Stock (and in such event, of Restricted Junior Payments permitted to no mandatory prepayment under Section 2.4(e)(v) shall be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;required),
(viid) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital repurchase Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or options, warrants and other convertible or exchangeable securities; provided, that such repurchase may only be made when (iii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default is continuing, (ii) after giving effect to such repurchase, Borrower shall have occurred at least $10,000,000 of Availability, and be continuing (iii) after giving effect to such repurchase, Borrower is in pro forma compliance with the financial covenants set forth in Section 7 (whether or shall be caused therebynot during a Covenant Enforcement Period), payments on account calculated as of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to last day of the most recent fiscal month for which the Administrative Agent is a party;financial statements have become available,
(xiiie) make cash payments in lieu of fractional shares issuable as dividends on Stock of the Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate, so long as (i) no Default or Event of Default is continuing, (ii) after giving effect to such repurchase, Borrower shall have occurred and be continuing or shall be caused therebyat least $10,000,000 of Availability, (iii) after giving effect to such repurchase, Borrower is in pro forma compliance with the financial covenants set forth in Section 7 (whether or any Subsidiary not during a Covenant Enforcement Period), calculated as of Borrower may make Restricted Junior Payments in the ordinary course last day of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearthe most recent fiscal month for which financial statements have become available.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly Directly or indirectly (x) declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptexcept that:
(iA) 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 made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit PartyBorrower;
(iiC) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividendsmay, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock Closing Date, prepay a portion of the outstanding Indebtedness under the Senior Subordinated Loan Documents in an aggregate amount equal to $22,411,238.75 (consisting of principal in the extent required by aggregate amount of $15,968,000, capitalized interest in the aggregate amount of $5,533,199 and accrued interest in the aggregate amount of $910,039) and thereafter, make regularly scheduled cash interest payments (and may accrue deferred interest) pursuant to the terms of the Existing Preferred Stock Senior Subordinated Loan Documents as in effect on the date hereof, subject to the subordination provisions set forth in the Senior Subordination Agreement;
(ivD) [Intentionally Omitted];
(E) Borrower may make distributions to Holdings to permit Holdings to make (and Holdings may make) scheduled payments of principal of, and accrued and unpaid interest on, the Best Seller Notes, in each case on an unaccelerated basis, 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 and payment; and
(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 ending on the last day of the most recent fiscal quarter for which Agent has received the monthly financial statements required to be delivered pursuant to PARAGRAPH A to the Reporting Rider;
(F) Borrower may make distributions to Holdings to permit Holdings to redeem (and Holdings may redeem) Investor Subordinated Notes and shares of its capital stock (or warrants or options to acquire any such shares) from employees of Borrower and its Subsidiaries upon the death or other termination of employment of such employees, or to permit Holdings to pay interest or principal in respect of any Stockholder Notes issued by Holdings to any such employee or their executors or administrators in payment of all or any portion of such redemption price, 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 ending on the last day of the most recent 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 $7,500,000;
(G) [Intentionally Omitted];
(H) [Intentionally Omitted];
(I) Borrower may make Restricted Junior Payments to Holdings in an amount sufficient to permit Holdings to pay (and Holdings may pay) regularly scheduled installments of accrued and unpaid interest on Investor Subordinated Notes issued to, and held by, individuals who are directors and employees of any Loan Party (excluding any partner, principal, director or employee of Code Xxxxxxxx & Xxxxxxx III, L.P., Code Xxxxxxxx & Xxxxxxx L.L.C., CHS Management III, L.P. or any holder of Senior Subordinated Notes) in an amount not to exceed forty-four percent (44%) of the accrued and unpaid interest on such Investor Subordinated Notes, so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for bywould result therefrom, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of subordination provisions set forth in such Investor Subordinated Notes or the Administrative Agent and Requisite Lenders Investor Subordination Agreement (such approval not to be unreasonably withheld or delayedas applicable);
(vJ) cash payments in respect of accrued but unpaid interest [Intentionally Omitted];
(K) The Loan Parties may pay to CHS the management fees set forth on SCHEDULE 7.8 to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal YearSUBSECTION 7.8.
Appears in 1 contract
Samples: Loan and Security Agreement (Beacon Roofing Supply Inc)
Restricted Junior Payments. No Credit Party shallBorrowers shall not, nor and shall it not permit any of its their Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to Borrowers may make regularly scheduled or required payments of principal and interest in respect of any Credit PartyOther Indebtedness of Borrowers in accordance with the terms of, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock 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 Existing Preferred Stock 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 date hereofmost 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) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed)[Intentionally omitted];
(v) cash payments [Intentionally omitted];
(vi) Borrowers and their Subsidiaries may redeem or purchase any equity interests in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default Borrowers or Event of Default exists before their Subsidiaries or after giving effect to such payment and any Indebtedness to the extent required by the terms of the Existing Notes as any Nevada Gaming Authority in effect on the date hereof;
(vi) order to preserve a material Gaming License, provided that so long as no Default or Event of Default such efforts do not jeopardize any material Gaming License, Borrowers shall have occurred diligently tried to find a third-party purchaser for such equity interests or Indebtedness and be continuing no third-party purchasers acceptable to the Nevada Gaming Authority is willing to purchase such equity interests or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon Indebtedness within a time period acceptable to the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal YearNevada Gaming Authority;
(vii) for so long as no Default LVSI is a corporation under Subchapter S of the Code or Event 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 Default shall have occurred 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 be continuing or 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 caused therebyincreased by such undistributed portion; 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, payments on account as applicable, a cash distribution for such purpose in respect of Indebtedness incurred pursuant to Section 6.1(c)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 (ia) 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 Restricted Junior Payments on its Capital Stock that are repurchases of capital stock of LVSI deemed to occur upon the exercise of stock options or warrants if to the extent such Capital Stock capital stock represents a portion of the exercise price of such options or warrants and options; and
(iixi) Borrowers may make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans payments on any Completion Guaranty Loan (a) prior to the extent that net share settlement arrangements are deemed Final Completion, from amounts permitted to be repurchases;
(ix) deposited in the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant Guaranty Deposit Account subject to the terms of such convertible securities the Xxxxxxx Completion Guaranty and the payment of cash in lieu of fractional shares in connection therewith;
Disbursement Agreement, (xb) Restricted Junior Payments deemed on Final Completion Date from amounts which are advanced to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or Borrowers pursuant to a repurchase plan established substantially contemporaneously 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 issuance of 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 Common Stock);
(xii) 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 shall have occurred then exist and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearwould result therefrom.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shallThe Borrower shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment; provided that (a) the Borrower may make regularly scheduled payments of interest in respect of the Senior Subordinated Notes and of any Subordinated Indebtedness issued in accordance with Sections 6.1(g) and (h) hereof in accordance with the terms of, 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), (yb) agree the Borrower may make Restricted Junior Payments pursuant to declareand in accordance with stock option plans, orderstock purchase plans or other benefit plans for management or employees of the Borrower or any Subsidiary including the redemption or purchase of shares of common stock of the Borrower held by former employees of the Borrower or any Subsidiary following the termination of their employment, pay or make in an amount not to exceed $500,000 (plus any amounts received by the Borrower after the Closing Date and prior to making such Restricted Junior Payment from the issuance of additional shares of its common stock to members of management or set apart any sum for any employees of the Borrower and its Subsidiaries), (c) 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, except:
and (d) the Borrower may make Restricted Junior Payments with proceeds from an Equity Issuance or from the issuance of Subordinated Indebtedness, in each case, in replacement of, or exchange for, Subordinated Indebtedness permitted under Section 6.1(g) to the extent such Equity Issuance or Subordinated Indebtedness is issued on terms reasonably satisfactory to the Administrative Agent; provided that in each case (i) the Borrower shall be in pro forma compliance with Section 6.6 both before and after giving pro forma effect to each such Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party Payment and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form would otherwise arise as a result of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (any such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal YearPayment.
Appears in 1 contract
Samples: Credit Agreement (Pantry Inc)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly Directly or indirectly (x) declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptexcept that:
(iA) 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 made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit PartyBorrower;
(iiC) Borrower may declare make distributions to Holdings to permit Holdings to redeem (and pay dividends Holdings may redeem) shares of its capital stock (or make warrants or options to acquire any such shares) from employees of Borrower and its Subsidiaries upon the death or other distributions ratably to its equity holders;termination of employment of such employees, provided all of the following conditions are satisfied:
(iii1) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form would arise as a result of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld distribution or delayed)payment;
(v2) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or 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 ending on the last day of the most recent 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 extent required by “earn-out” amount in accordance with the terms of the Existing Notes as in effect on the date hereof;
Shelter Acquisition Documents, provided that (vi1) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused therebywould arise as a result of such payment, Borrower may purchase Capital Stock or options (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 respect excess of Capital Stock from present or former directors, officers, consultants, or employees the minimum Excess Availability required under clause (or their respective spouses, ex-spouses, or estatesA) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment Financial Covenants Rider and (3) average daily Excess Availability for the 60-day period preceding the date of such director, officer, consultant or employee; provided that payment (as mutually calculated by Borrower and Agent in accordance with this Agreement) exceeds the aggregate cash amount of payments made pursuant to this Section 6.4(viminimum Excess Availability required under clause (A) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price 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 options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stockperiod);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Year.
Appears in 1 contract
Samples: Loan and Security Agreement (Beacon Roofing Supply Inc)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made 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 Borrower the terms of the Subordinated Notes, New Subordinated Notes, or the instruments evidencing such Additional Subordinated Indebtedness, respectively, but subject, in each case to any Credit Partythe subordination provisions contained therein; provided that (X) Company may -------- repurchase, Restricted Junior Payments made by 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 have occurred and be continuing at the time of such purchase or repurchase, and (b) immediately after giving effect to Borrower each such purchase or any other Credit Party repurchase, Company is in compliance on a Pro Forma Basis with all covenants set forth in Section 6 and Restricted Junior Payments made by any Subsidiary 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 have occurred and be continuing at the time of such redemption and (b) immediately after giving effect to such redemption, Company is not in compliance on a Credit Party to any other Subsidiary that is not a Credit Party;Pro Forma Basis with all covenants set forth in Sections 6 and 7 of this Agreement.
(ii) Borrower any Subsidiary of Company may declare and pay dividends or make other distributions ratably to its equity holders;Company with respect to Company's ownership interest in such Subsidiary; and
(iii) Borrower Company may declare and pay dividends, whether in Cash dividends or Common make other distributions with respect to the New Preferred Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) but only so long as as, after giving effect to such dividend or distribution, no Potential Event of Default or Event of Default shall have occurred and be continuing continuing; provided, that -------- Company may repurchase, in one or shall be caused therebya series of transactions, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, New Preferred Stock so long as (a) no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Potential Event of Default 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 in compliance on a Pro Forma Basis with all covenants set forth in Section 6 and 7 of this Agreement, and (c) the fair market value at the time of such repurchase of 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 New Preferred Stock held by it. It is understood and agreed that, except as set forth in the proviso to clause (iii) of this subsection, Company shall be caused thereby, Borrower may purchase Capital Stock or options not make any Restricted Junior Payment in respect of Capital Stock from present any redemption, purchase or former directorsother acquisition of any shares of any class of New Preferred Stock, officersincluding, consultantswithout limitation, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with any ``CHANGE OF CONTROL'' (as such term is defined in the retention documentation governing each such class of New Preferred Stock) which would otherwise entitle the holders of any shares of New Preferred Stock to require Company to redeem, purchase or otherwise acquire such shares, other than through the issuance by Company of shares of any Non-Restricted Capital Stock to such holders in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion such shares of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified New Preferred Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Year.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly Directly or indirectly (x) declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except that:
(a) Borrower may make payments and distributions to Beacon Canada Holdings that are used by Beacon Canada Holdings to make payments and distributions to US Borrower, the proceeds of which payments and distributions US Borrower uses to make payments and distributions to Holdings in order that Holdings may pay US 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;
(yb) agree to declare, order, pay or Subsidiaries of Borrower may make any Restricted Junior Payment Payments to Borrower;
(c) US Borrower may make distributions to Holdings to permit Holdings to redeem (and Holdings may redeem) shares of its capital stock (or set apart warrants or options to acquire any sum for any Restricted Junior Paymentsuch shares) from employees of US Borrower and its Subsidiaries upon the death or other termination of employment of such employees, exceptprovided all of the following conditions are satisfied:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form would arise as a result of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld distribution or delayed)redemption;
(vii) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment distribution and to redemption, the extent required by Loan Parties shall be in compliance on a pro forma basis with all covenants and agreements set forth in the terms Financial Covenants Rider (excluding paragraph A thereof) recomputed for the twelve-month period ending on the last day of the Existing Notes as in effect on most recent fiscal quarter for which Agent has received the date hereofmonthly financial statements required to be delivered pursuant to paragraph (A) of the Reporting Rider;
(viiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment aggregate amount of such director, officer, consultant or employee; provided that the aggregate cash amount distributions permitted in any fiscal year of payments made pursuant to this Section 6.4(vi) during any Fiscal Year US Borrower shall not exceed US$500,000; and
(iv) after giving effect to such distribution and payment and the making of any US Facility Revolving Loan to fund such distribution, Excess Availability is at least US$10,000,000; and
(d) in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion cases of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrantsLoan Parties, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities Borrower and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds ofits Subsidiaries, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in permitted under the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal YearUS Facility Loan Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Beacon Roofing Supply Inc)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptexcept the following shall be permitted:
(ia) Restricted Junior Payments made by Borrower to Company may make regularly scheduled payments in respect of any Credit PartySubordinated Indebtedness of Company and its Subsidiaries in accordance with the terms of, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to the terms of subordination provisions contained in, the Existing Preferred Stock as in effect on the date hereofindenture or other agreement pursuant to which such Subordinated Indebtedness was issued or is otherwise subject;
(ivb) [Reserved];
(c) [Reserved];
(d) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments Company may make Restricted Junior Payments to Holdings in the form of principalan aggregate amount not to exceed $100,000 in any Fiscal Year, to the extent provided for by, necessary to permit Holdings to pay general administrative costs and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed)expenses;
(ve) cash payments in respect of accrued but unpaid interest Company may make Restricted Junior Payments to Holdings to the extent expressly provided for byrequired to permit Holdings to repurchase its Capital Stock, in each case from deceased, disabled, terminated or retired officers, directors, consultants or employees of Holdings and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereofits Subsidiaries, so long as no Default or Event Holdings applies the amount of Default exists before or such Restricted Junior Payment for such purpose; provided, that (x) at the time of each such Restricted Junior Payment and immediately after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as thereto, no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees and (or their respective spouses, ex-spouses, or estatesy) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments Restricted Junior Payments made pursuant to this Section 6.4(viclause (e) during any Fiscal Year shall not exceed $750,000 in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding any Fiscal Year;
(viif) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower Company may make Restricted Junior Payments with respect to cash payments in the ordinary course respect of business Additional Earn-Out Obligations (including Additional Earn-Out Obligations which do not constitute Subordinated Indebtedness) in an aggregate amount not to exceed $350,000 in any Fiscal YearYear the aggregate amount corresponding to such Fiscal Year set forth on Schedule 6.5(f).
(g) [Reserved].
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Reprographics CO)
Restricted Junior Payments. No Credit Party shallThe Borrowers shall not, nor and shall it not permit any of its their Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Paymentsinking fund, defeasance fund or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any other sum for any Restricted Junior Payment, except:
(ia) Restricted Junior Payments made by Borrower to the Borrowers may make regularly scheduled payments and mandatory prepayments (not including any Credit Partypayments upon an acceleration) of principal and interest in respect of any Other Indebtedness of the Borrowers in accordance with the terms of, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by the agreement pursuant to which such Other Indebtedness was issued, provided that (i) any such payments shall be subject to the terms of the Existing Preferred Stock Credit Parties Intercreditor Agreement, the Xxxxxxx Intercreditor Agreement, the Xxxxxxx Subordination Agreement, and the Xxxxxxx Completion Guaranty, as applicable, (ii) any such payments in effect on respect of any Completion Guaranty Note or any Employee Repurchase Note may be made only to the date hereof;
(iv) so long as extent that no Default or Event of Default or Default shall have occurred then exist and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof would result therefrom and (yiii) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (any such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest any Employee Repurchase Note may be made only to the extent expressly provided for by, and in accordance with, that the terms and conditions ratio of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after Consolidated Adjusted EBITDA (without giving effect to the inclusion of 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 section 6.9(a) (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 section 6.9(a)) would have been in compliance with the requirements of section 6.9
(a) as certified to the Administrative Agent by the chief financial officer of each of the Borrowers, on behalf of each of the Borrowers, at the time of such payment;
(b) [Intentionally omitted];
(c) [Intentionally omitted];
(d) [Intentionally omitted];
(e) [Intentionally omitted];
(f) the Borrowers and their Subsidiaries may redeem or purchase any equity interests in the 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, the terms of 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 Existing Notes as in effect on Nevada Gaming Authority shall have been willing to purchase such equity interests or Indebtedness within a time period acceptable to the date hereofNevada Gaming Authority;
(vig) for so long as no Default a Borrower is a corporation under Subchapter S of the IRC (in the case of LVSI) or Event a limited liability company (in the case of Default shall have occurred and be continuing or shall be caused therebyVCR) or, in either case, a substantially similarly treated pass-through entity for Federal income tax purposes (as evidenced by an opinion of counsel delivered at least annually), such Borrower may purchase Capital Stock make cash distributions to its shareholders or options members, during each Quarterly Period, in an aggregate amount not to exceed the Permitted Quarterly Tax Distribution in respect of Capital Stock from present the related Estimation Period, provided that neither Borrower may make any such distribution to pay taxes attributable to the income of the New Mall Subsidiary or former directors, officers, consultantsthe Phase II Subsidiary, or employees (any of their Subsidiaries, unless the Borrowers shall have received from the applicable holding companies of the New Mall Subsidiary or their respective spousesPhase II Subsidiary, ex-spousesas applicable, or estates) a cash distribution for such purpose in respect of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed applicable Estimation Period in the aggregate the sum of (a) $500,000 plus (b) the aggregate an equal amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(viih) so long as no Default the 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 the Borrowers or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c)a Borrower;
(viii) Borrower may (i) the Borrowers may make Restricted Junior Payments on its Capital Stock that any repurchases of capital stock of LVSI which are deemed to occur upon the exercise of stock options or warrants if to the extent such Capital Stock capital stock represents a portion of the exercise price of such options options;
(j) the Borrowers may make Permitted Employee Repurchases so long as (i) no Event of Default or warrants Default shall exist and be continuing or would result therefrom and (ii) make Restricted Junior Payments the ratio of Consolidated Adjusted EBITDA (without giving effect to the inclusion of 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 section 6.9(a) (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 section 6.9(a)) would have been in connection compliance with the retention requirements of Capital Stock in payment section 6.9(a) as certified to Administrative Agent by the chief financial officer of withholding taxes in connection with equity-based compensation plans to each of the extent that net share settlement arrangements are deemed to be repurchasesBorrowers, on behalf of each of the Borrowers, at the time of such payment;
(ixk) the conversion of convertible securities Borrowers may make payments on any Completion Guaranty Loan (including warrantsi) prior to the Final Completion Date, options and convertible debt securities otherwise from amounts permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to be deposited in the Guaranty Deposit Account subject to the terms of such convertible securities the Xxxxxxx Completion Guaranty and the payment of cash Disbursement Agreement, (ii) after the Final Completion Date from Liquidated Damages, and (iii) on the Final Completion Date, from amounts which are returned to the Mall Construction Subsidiary from funds in lieu of fractional shares the "Mall Retainage/Punchlist Account" maintained in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously accordance with the issuance of Mall Escrow Agreement, up to the aggregate amount previously deposited into such Common Stock);
(xii) 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 Default or Event of Default or Default shall have occurred then exist and be continuing or shall be caused therebywould result therefrom; and
(l) the Borrowers may repay Indebtedness outstanding under the Bank Credit Agreement out of the proceeds of any refinancing, payments on account replacement or refunding of Subordinated Indebtedness the facility under the Bank Credit Agreement with the same or other institutional lenders, provided that any variance between the terms and conditions of the refinanced facility and the terms and conditions of the Bank Credit Agreement immediately before such refinancing would have been permissible under the terms of section 6.18 as an amendment to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;Bank Credit Agreement.".
(xiiiL) so long Section 6.9 of the Original Equipment Loan Agreement is hereby amended and restated in its entirety to read as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Year.follows:
Appears in 1 contract
Samples: Term Loan and Security Agreement (Las Vegas Sands Inc)
Restricted Junior Payments. “No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment; provided that, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) LLC may make Restricted Junior Payments made by Borrower to any Credit PartyHoldings, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments Holdings may make Restricted Junior Payments in the form of principal, order for Holdings to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld repurchase or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect redeem outstanding shares of Capital Stock from present (or options to purchase Capital Stock) of Holdings owned by current or former directorsemployees, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) directors of Borrower Holdings or any Subsidiary upon the deathof its Subsidiaries pursuant to any management equity subscription agreement, disabilitystock option agreement or similar equity agreement, retirementshareholders agreement or benefit plan, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made all Restricted Junior Payments paid pursuant to this Section 6.4(visubclause (ii) during in any Fiscal Year shall not exceed $50,000 plus the amount of any net cash proceeds received by Holdings in such Fiscal Year from the aggregate the sum sale of Capital Stock of Holdings to any and all such employees, officers or directors that do not constitute an Excluded Issuance (a) $500,000 plus (b) the aggregate amountit being understood, if anyhowever, of Restricted Junior Payments that unused amounts permitted to be made, but not made, paid pursuant to this Section 6.4(viproviso are Holdings and available to be carried over to subsequent Fiscal Years), and (iii) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower Holdings may (i) make Restricted Junior Payments on its Capital Stock that are deemed or about the date hereof in order to occur upon consummate the exercise purchase of certain stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) Holdings pursuant to the terms of such convertible securities that certain Stock Purchase Agreement, dated as of March 14, 2008, by and among the payment Sellers identified therein and Holdings.”
2.6. Section 6.8(c) of cash the Credit Agreement is amended and restated in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long its entirety as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Year.follows:
Appears in 1 contract
Samples: Credit Agreement (SolarWinds, Inc.)
Restricted Junior Payments. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Paymentapart, or (y) agree to declare, order, pay pay, make or set apart, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptexcept that:
(ia) Restricted Junior Payments made by Borrower to any Credit Partymay make required payments of principal, Restricted Junior Payments made by any Subsidiary to Borrower or and interest, fees and any other amount due in respect of the Indebtedness incurred under the Second Lien Credit Party Agreement and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Partyrefinancing Indebtedness in respect thereof permitted hereunder;
(iib) Borrower may declare make Initial Earnout Payments and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether Milestone Payments in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock cash to the extent expressly required by the terms Stock Purchase Agreement in respect of the Existing Preferred Stock Fiscal Year ended December 31, 2007; provided, that (i) Borrower and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 6.07 on a pro forma basis after giving effect to such payment as of the last day of the Fiscal Quarter most recently ended for which financial statements have been provided pursuant to Section 5.01 (as determined in effect on accordance with Section 6.07(d) and evidenced by delivery of the date hereof;
relevant Compliance Certificates in accordance with Section 5.01(d)) and (ivii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed)would result therefrom;
(vc) Borrower may make payments to Sellers pursuant to Section 1.7 of the Stock Purchase Agreement;
(d) Borrower may make Initial Earnout Payments and Milestone Payments in cash payments as required by the Stock Purchase Agreement in respect of accrued the Fiscal Year ended December 31, 2008 and thereafter in an amount not to exceed the amount of cumulative Consolidated Excess Cash Flow of the Borrower not required to prepay the Loans pursuant to Section 2.27(e) for the period from November 1, 2007 to December 31, 2007 (that, for the avoidance of doubt, is not subject to prepayment pursuant to Section 2.27(e)) and each Fiscal Year ending after the Closing Date but unpaid interest prior to the extent expressly date of determination; provided for by, that (i) Borrower and its Subsidiaries shall be in accordance with, compliance with the terms and conditions of the Existing Notes, as financial covenants set forth in effect Section 6.07 on the date hereof, so long as no Default or Event of Default exists before or a pro forma basis after giving effect to such payment and to the extent required by the terms as of the Existing Notes last day of the Fiscal Quarter most recently ended for which financial statements have been provided pursuant to Section 5.01 (as determined in effect on accordance with Section 6.07(d) and evidenced by delivery of the date hereof;
relevant Compliance Certificates in accordance with Section 5.01(d)), (viii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused therebywould result therefrom, Borrower may purchase Capital Stock or options in respect (iii) at the time of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment making of such directorpayment and after giving effect thereto, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, by which (1) the Revolving Commitments exceeds (2) the sum of the Total Utilization of Revolving Commitments shall not be less than $5,000,000 and (iv) such payment shall not be made earlier than five (5) Business Days after the delivery of the Compliance Certificate required by Section 5.01(d) in respect of such Fiscal Year for which the Initial Earnout Payments and Milestone Payments are due;
(e) Borrower may make Initial Earnout Payments and Milestone Payments in an amount equal to (i) the aggregate principal amount of any Earnout Seller Notes plus (ii) the amount of net cash proceeds received by Borrower from an offering of common Capital Stock of Borrower to the extent not required to prepay the Loans pursuant to Section 2.27(c) or used in connection with a Permitted Acquisition, a permitted Investment pursuant to Section 6.06 or Consolidated Capital Expenditures;
(f) (i) any Subsidiary may make Restricted Junior Payments permitted to be madeits direct parent to the extent its parent is Borrower or any other Subsidiary, (ii) any such Subsidiary that is not a Wholly Owned Subsidiary may make distributions to Persons that are not Loan Parties, pro rata to such Persons’ ownership of such Subsidiary and concurrently with the making of distributions to the Loan Parties or otherwise for Taxes payable by such Persons (whether or not pro rata, but if not madepro rata the Loan Parties shall receive at least their pro rata share); provided that that in the case of clause (ii), (i) Borrower and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 6.07 on a pro forma basis after giving effect to such payment as of the last day of the Fiscal Quarter most recently ended for which financial statements have been provided pursuant to this Section 6.4(vi5.01 (as determined in accordance with Section 6.07(d) during and evidenced by delivery of the immediately preceding Fiscal Year;
relevant Compliance Certificates in accordance with Section 5.01(d)) and (viiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c)would result therefrom;
(viiig) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection order to incentivize such holders to exercise the Warrants prior to the exercise date specified therein; provided that (i) the making of such Restricted Junior Payment shall be contingent upon, and shall only be made concurrently with, the minimum receipt of cash proceeds by the Borrower prior to or simultaneous with the retention exercise of Capital Stock such Warrants equal to or in payment excess of withholding taxes the amount of such Restricted Junior Payment, (ii) upon the receipt of the cash proceeds of the exercise of the Warrants, Borrower shall make a prepayment pursuant to Section 2.27 in connection with equity-based compensation plans an amount equal to the extent that net share settlement arrangements are deemed amount of such Restricted Junior Payment; (iii) Borrower and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 6.07 on a pro forma basis after giving effect to be repurchases;
(ix) such payment as of the conversion last day of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) the Fiscal Quarter most recently ended for which financial statements have been provided pursuant to Section 5.01 (as determined in accordance with Section 6.07(d) and evidenced by delivery of the terms of such convertible securities relevant Compliance Certificates in accordance with Section 5.01(d)) and the payment of cash in lieu of fractional shares in connection therewith;
(xiv) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness would result therefrom; and
(h) Borrower may make Restricted Junior Payments in an aggregate amount not to exceed $350,000 to the extent constituting payment in full to the holders of such Warrants the minimum amount required to terminate, retire or obtain the surrender of the Warrants expressly pursuant to their terms (without giving effect to any amendment after the date hereof); provided that that in each case, (i) Borrower and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 6.07 on a pro forma basis after giving effect to such payments are permitted under any intercreditor agreement or subordination agreement, payment as applicable, of the last day of the Fiscal Quarter most recently ended for which financial statements have been provided pursuant to which Section 5.01 (as determined in accordance with Section 6.07(d) and evidenced by delivery of the Administrative Agent is a party;
relevant Compliance Certificates in accordance with Section 5.01(d)) and (xiiiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearwould result therefrom.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (Paramount Acquisition Corp)
Restricted Junior Payments. No Credit Party shall, nor shall it Borrower will not and will not permit any of its Restricted Subsidiaries to, directly or indirectly (x) to declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptexcept that:
(i) During the first Loan Year, Borrower may repurchase the Chase Warrant and the Xxxxxx Warrant and may redeem shares of its capital stock, in each case so long as:
(a) no Default or Event of Default is then in existence or would be created as a result thereof;
(b) after giving effect to such repurchase or redemption, Availability is not less than $5,000,000; and
(c) the aggregate amount of such Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is shall not a Credit Party to any other Subsidiary that is not a Credit Party;exceed $10,000,000; and
(ii) During the first Loan Year, and so long as no Default or Event of Default is than in existence or would be created as a result thereof, Borrower may declare repurchase the Chase Warrant and pay dividends the Xxxxxx Warrant and may redeem shares of its capital stock with proceeds received by Borrower from its issuance of the Senior Notes in an amount not exceeding $20,000,000 which are at all times prior to any such repurchase or make redemption held by Borrower in a segregated account and not co-mingled with any other distributions ratably to funds of Borrower or its equity holdersSubsidiaries; Notwithstanding the foregoing, Borrower may not repurchase the Chase Warrant or the Xxxxxx Warrant or redeem shares of its capital stock if either such repurchase would constitute a breach of or result in a default under the Senior Note Documents;
(iiiB) Restricted Subsidiaries of Borrower may declare and pay dividends, whether in Cash or Common Stock, make Restricted Junior Payments to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereofBorrower;
(ivC) so long as no Default or Event of Default shall have occurred is then in existence, or would occur as a result of such redemption, Borrower may redeem shares of capital stock from any of its employees and be continuing directors for the purpose of providing cash to such employee or shall be caused thereby, (x) regularly scheduled payments director in an amount not in excess of such employee's or director's federal and state tax liability from the form exercise of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed)stock options granted by Borrower;
(vD) cash payments Borrower may accept delivery of shares of its capital stock from any of its employees and directors in respect payment of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions all or any portion of the Existing Notes, as in effect on the date hereof, so long as no Default or Event exercise price of Default exists before or after giving effect to such payment and to the extent required stock options granted by the terms of the Existing Notes as in effect on the date hereofBorrower;
(viE) so long as no Default or Event of Default shall have occurred and be continuing is then in existence, or shall be caused therebywould occur as a result of such payment, Borrower may purchase Capital Stock or options pay management fees to PPI Management Company, a California corporation, such fees not to exceed $60,000 in respect each of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employeeBorrower's 2004 and 2005 fiscal years and $75,000 in each fiscal year thereafter; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;and
(viiF) so long as no Default or Event of Default shall have occurred and be continuing is then in existence, or shall be caused therebywould occur as a result of such redemption, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on redeem shares of its Capital Stock that are deemed to occur upon the exercise capital stock from any of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants its employees and (ii) make Restricted Junior Payments in connection directors whose employment with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrantsBorrower has terminated, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds ofXxxx X. Xxxxx, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed in excess of $350,000 300,000 in any Fiscal Yearfiscal year of Borrower.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shallwill, nor shall will it permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(a) on the Closing Date, Restricted Junior Payments to fund the Acquisition Financing Requirements in accordance with the Funds Flow Memorandum;
(b) [Reserved];
(c) Restricted Junior Payments to the extent necessary to permit Holdings (or the relevant taxpaying Affiliate of Company or Holdings), to discharge Tax liabilities (or estimates thereof) with respect to the income of Holdings and its Subsidiaries, so long as Company or Holdings (or the relevant taxpaying Affiliate) applies the amount of any such Restricted Junior Payment for such purpose;
(d) to pay management fees and other fees expressly permitted under the Management Agreements and to reimburse expenses in accordance with the Management Agreements;
(e) [Reserved];
(f) [Reserved];
(g) Restricted Junior Payments to permit Holdings or any direct or indirect holding company of Holdings or Company to pay overhead expenses in an amount not to exceed $287,500 in any Fiscal Year, so long as Company or Holdings (or such relevant holding company) applies the amount of any such Restricted Junior Payment for such purpose;
(h) Company and its Subsidiaries may make payment of regularly scheduled interest and principal payments as and when due, and mandatory, optional or voluntary payments or prepayments in respect of principal thereof (including any payment to avoid the application of Internal Revenue Code Section 163(e)(5) thereto) and any other payments thereon that are permitted under the Subordination Agreement or the applicable subordination agreement, in respect of any Subordinated Indebtedness to the extent permitted hereunder including in connection with any Permitted Refinancings of such Subordinated Indebtedness and Company and its Subsidiaries may convert Subordinated Indebtedness to, or exchange Subordinated Indebtedness for Capital Stock in accordance with terms of such Subordinated Indebtedness;
(i) Restricted Junior Payments made expressly permitted by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party Section 6.9(a) and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;(b); and
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(ivj) so long as no Potential Event of Default or Event of Default shall have has occurred and is continuing at such time or would be continuing directly or shall be indirectly caused therebyas a result thereof, (x) regularly scheduled payments in the form of principal, Company and it Subsidiaries may pay dividends to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock capital stock from present or former directors, officers, consultants, officers or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary Credit Parties upon the death, disability, retirement, severance, retirement or termination of employment of such director, officer, consultant officer or employee; provided that any such repurchases do not involve any cash payments by Credit Parties or, to the extent cash payments are made by Credit Parties, the aggregate cash amount of dividend payments made pursuant to this Section 6.4(vi) during any Fiscal Year to fund purchases described above shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and $1,150,000 plus (ii) make Restricted Junior Payments in connection the unused amount available for such dividend payments under this clause 6.5(j) for the immediately two preceding Fiscal Years (excluding any carry-forward available from any previous Fiscal Year); provided that with respect to any Fiscal Year, any such dividend payments made during such Fiscal Year shall be deemed to be made first with respect to the retention of Capital Stock in payment of withholding taxes in connection applicable limitation for such year and then with equityrespect to any carry-based compensation plans forward amount to the extent that net share settlement arrangements are deemed to be repurchases;applicable; and
(ixk) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower Company may make Restricted Junior Payments in as specifically required by the ordinary course Sand Purchase Documents; provided that nothing herein shall be deemed to prohibit the payment of business in an aggregate amount not dividends by any Subsidiary of Company to exceed $350,000 in Company or any Fiscal YearSubsidiary Guarantor.
Appears in 1 contract
Samples: Note Purchase Agreement (U.S. Silica Holdings, Inc.)
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its respective Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; provided that (i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
Company may make scheduled interest payments in respect of the Subordinated Notes in accordance with the terms of the Subordinated Note Indenture; (ii) Borrower Company may declare make scheduled interest and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether principal payments in Cash or Common Stock, to holders respect of Existing Preferred Stock on the Existing Preferred Stock to the extent required Seller Note and any Permitted Seller Notes permitted by subsection 7.1(viii) in accordance with the terms of the Existing Preferred Stock as in effect on the date hereof;
Seller Note and such Permitted Seller Notes; (iviii) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled Company may make payments in the form of principal, an aggregate amount not to exceed $1,000,000 in any Fiscal Year to the extent provided for bynecessary to repurchase shares of Company Common Stock from officers, and directors or employees of Company or any of its Subsidiaries following termination of employment of any such officer, 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, with the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the customary terms of the Existing Notes as in effect on the date hereof;
management and/or employee stock plans, stock subscription agreements or shareholder agreements entered into with officers, directors or employees of Company or any of its Subsidiaries; (viiv) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower Company may purchase Capital repurchase Company Preferred Stock or options in respect and make payments of Capital Stock from present or former directorsaccrued and unpaid dividends to the holders of Company Preferred Stock, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during in no event may Company pay any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default dividend on or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital repurchase Company Preferred Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
unless both (x) Restricted Junior Payments deemed to occur upon the settlement Leverage Ratio for the most recently ended four-Fiscal Quarter period does not exceed 2.0:1.0 and (y) at least 50% of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock the initial aggregate principal amount of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal YearTerm Loans has been repaid.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly Directly or indirectly (x) declare, order, pay or pay, make any Restricted Junior Payment 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 (y) agree to declare, order, pay or make any other equity interest which Restricted Junior Payment or set apart any sum for any Restricted Junior Paymentshall be applied to pay the Senior Debt in accordance with its terms and, except:
(i) Restricted Junior Payments made by Borrower to any Credit Partyafter payment in full thereof, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
the Obligations; (ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred is occurring or continuing and be continuing 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 caused thereby, (x) regularly scheduled payments in made solely with the form issuance of principal, to shares of additional stock issued upon the extent provided for by, and in accordance with, the terms exercise of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);options granted under Recoton's stock option plans.
(va) cash payments in respect of accrued but unpaid interest Directly or indirectly pay or prepay any account payables to the extent expressly provided for bySTD provided, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereofhowever, so long as no Default or Event of Default exists before has then occurred or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be is continuing or shall would be caused thereby, Borrower the account payables to STD may purchase Capital Stock or options in respect of Capital Stock from present or former directorsbe paid on a monthly basis, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that all the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of following conditions have been met:
(a) $500,000 plus (b1) the aggregate amount, if any, 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 Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Yearissuance;
(vii2) so long as no Default or Event the amount to be paid shall not be in excess of Default shall have occurred and $25,000,000 per month; and
(3) the amounts to be continuing or repaid shall be caused thereby, payments on for account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection payables with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans respect to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion purchase of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal YearInventory from STD.
Appears in 1 contract
Samples: Credit Agreement (Recoton Corp)
Restricted Junior Payments. No Credit Party shallCompany shall not, nor and shall it not permit any of its Restricted Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment; provided that Company may (i) make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms of 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 not prohibited by this Agreement; (yii) agree make Restricted Junior Payments to declareHoldings or United Online (a) provided such amounts are reflected in the calculation of Consolidated Net Income, orderto the extent necessary to permit Holdings to pay Company’s allocated share of general administrative costs and expenses to United Online, pay (b) to the extent necessary to permit Holdings to reimburse United Online for the allocated tax liabilities of Company, in each case so long as Holdings applies the amount of any such Restricted Junior Payment 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, Company and its Restricted Subsidiaries, and (c) for Equity Related Compensation Payments that constitute Restricted Junior Payments; (iii) make additional Restricted Junior Payments to any Person at any time in an amount not to exceed (a) the then available Annual Basket Amount; provided that at the time of any such Restricted Junior Payment Net Revolver Usage does not exceed $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 or set apart any sum for any Restricted Junior Paymentis made under this subsection 7.5(iii), except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders no Potential Event of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or and Company and its Restricted Subsidiaries shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof Pro Forma Compliance; and (yiv) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower Holdings may make Restricted Junior Payments with amounts funded by Company in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearaccordance with this subsection 7.5.
Appears in 1 contract
Samples: Credit Agreement (United Online Inc)
Restricted Junior Payments. No Credit Party shallEach Borrower shall not, nor and shall it not permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
; PROVIDED that (i) Restricted Junior Payments made Company may redeem the Existing Senior Notes as contemplated by Borrower to any Credit Partysubsection 4.1F(iv), Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower Company may declare 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 pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to the terms of subordination provisions contained in, the Existing Preferred Stock as in effect on the date hereof;
Subordinated Note Indenture, and (iviii) so long as no Default or Event of Default shall have or Potential Event of Default has occurred and be is continuing or shall would be caused thereby, Company may:
(xa) regularly scheduled payments repurchase shares of its capital stock (together with options or warrants in the form respect of principalany thereof) held by officers, to the extent provided for bydirectors and employees of Company so long as such repurchase is pursuant to, and in accordance withwith the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(b) repurchase, redeem, defease or otherwise prepay or retire any Existing Subordinated Notes not tendered pursuant to the Debt Tender Offer on terms (set forth in the Existing Subordinated Note Indenture or otherwise) no less favorable in any material respect to Company and Lenders than the terms of the Existing Notes 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;
(d) purchase, redeem or otherwise acquire shares of common stock of Company or warrants or options to acquire any such shares with proceeds received by Company from substantially concurrent equity contributions or issuances of new shares of its common stock;
(e) redeem or exchange, in effect whole or in part, any capital stock of Company for shares of another class of capital stock of 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
(f) make other Restricted Junior Payments; PROVIDED that on the date hereof and (ythe "DECLARATION DATE") voluntary prepayments of the Existing Notes, subject to the prior approval declaration of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments any dividend in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of Company's outstanding capital stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of this clause (f) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (f), (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 convertible securities and Restricted Junior Payment, when added to the payment aggregate amount of cash in lieu of fractional shares in connection therewith;
(x) all Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
previously declared or (xiwithout duplication) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either paid by way of a substantially contemporaneous exchange or use of proceeds or Company pursuant to a repurchase plan established substantially contemporaneously with this clause (f) during the issuance period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of such Common Stock);
(xii) so long as no Default or Event cumulative Consolidated Net Income of Default shall have occurred Company and be continuing or shall be caused thereby, payments its Subsidiaries for the period commencing on account the Closing Date and ending on the last day of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal YearQuarter most recently ended.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior PaymentPayment except the following shall be permitted:
(a) [Reserved];
(b) Company may make regularly scheduled payments (but not voluntary prepayments) in respect of (i) the New Company Subordinated Notes in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the New Company Subordinated Note Indenture and (ii) any repurchase or repayment of the New Company Subordinated Notes with the proceeds of any refinancing of the New Company Subordinated Notes permitted under Section 6.1(c);
(yc) agree to declareSo long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, order, pay or Company may make regularly scheduled payments of interest on any Restricted Junior Payment or set apart Take Out Securities; PROVIDED that (i) the aggregate amount of any sum for such interest payments shall not exceed $10,000,000 in any Fiscal Year and (ii) at the time of such Restricted Junior Payment, except:and after giving effect thereto, the Senior Leverage Ratio shall not exceed 2.25:1.00;
(d) So long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Company may consummate a Tender Offer or redeem the New Company Subordinated Notes in accordance with the terms of the New Company Subordinated Note Indenture; provided that at the time of such Restricted Junior Payment, and after giving effect thereto, the Senior Leverage Ratio shall not exceed 2.25:1.00;
(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 (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 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 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 made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock Holdings to the extent required by to enable Holdings to make such payments, so long as Holdings applies the terms amount of any such Restricted Junior Payment for such purpose); provided that at the Existing Preferred Stock as in time of such Restricted Junior Payment pursuant to this clause (i) and immediately after giving effect on the date hereofthereto, no Event of Default shall have occurred and be continuing under Sections 8.1(a), Section 8.1(c) or Section 8.1(e);
(ivj) 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. (x) regularly scheduled payments in the form of principal, and Company may make Restxxxxxx Xxxxxx Payments to Holdings to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject required to the prior approval of the Administrative Agent and Requisite Lenders (enable Holdings to make such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereofpayments, so long as no 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 their Affiliates as annual management fees pursuant to the Management Services Agreement, (2) any transaction fees to be paid to Leonard Green & Partners, L.P. in connection with the Prixx Xxxxxxxxxxn, (3) any normal and customary transaction fees to be paid to Leonard Green & Partners, L.P., from time to time, under xxxx Xxxxxxxxnt Services Agreement, and (4) the reimbursement of the normal and customary out-of-pocket costs and expenses of Leonard Green & Partners, L.P. under such Management Servxxxx Xxxxxxxxt; PROVIDED, HOWEVER, such payments shall accrue during the pendency of any such Default or Event of Default exists before or after giving effect to such payment and to the extent required by accrued shall be payable upon the terms cure, waiver or rescission of such Default or Event of Default; provided, FURTHER, that the Existing Notes 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 effect on the date hereofclauses (1), (2), (3) and (4) of this Section 6.5(l);
(vim) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower Company may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of make Restricted Junior Payments permitted to be madeHoldings, but not madeto 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, pursuant to this Section 6.4(vi) during in each case so long as Holdings applies the immediately preceding Fiscal Yearamount of any such Restricted Junior Payment for such purpose;
(viin) notwithstanding Section 6.5(b) or any of the foregoing to the contrary, so long as no Default or Event of or Default shall have occurred and be continuing or shall be caused covered thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower Company may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion voluntary prepayments in respect of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of New Company Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business Notes in an aggregate amount not to exceed $350,000 50,000,000; and
(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 any Fiscal Yearaccordance with Section 6.9(h).
Appears in 1 contract
Restricted Junior Payments. No The Credit Party shallParties shall not, nor and shall it not permit any of its their Subsidiaries to, directly or indirectly (x) declare, order, pay to declare or make any Restricted Junior Payment or set apart at any sum for time; provided, however, that:
(a) any Restricted Junior Payment, or Subsidiary of a Domestic Credit Party (yother than Holdings) agree to declare, order, may pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower dividends and distributions to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other such Domestic Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any (other Subsidiary that is not a Credit Partythan Holdings);
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(ivb) so long as no Default or Event of Default shall have has occurred and be is continuing or shall be caused therebywould result therefrom, Holdings may redeem its capital stock solely in exchange for other capital stock of Holdings constituting Qualified Equity Interests;
(xc) regularly scheduled payments the Borrower may make dividends or other distributions to Holdings (i) in the form of principal, amounts required for Holdings to pay income taxes imposed directly on Holdings to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject such taxes are directly attributable to the prior approval income of Holdings and its Subsidiaries (including by virtue of Holdings being the Administrative Agent common parent of a consolidated or combined tax group of which the Borrower and Requisite Lenders (such approval not to be unreasonably withheld or delayedits Subsidiaries are members);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans amounts equal to the extent that net share settlement arrangements are deemed amounts required for Holdings to be repurchases;
pay franchise taxes and other fees required to maintain its existence and (ixiii) the conversion of convertible securities to enable Holdings to pay other general and customary holding company costs and expenses (including warrantswithout limitation, options directors’ fees and convertible debt securities otherwise permitted under Section 6.1expenses) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either incurred by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments Holdings in the ordinary course of business in an aggregate amount not to exceed $350,000 750,000 during any fiscal year;
(d) the Borrower may make regularly scheduled payments of interest under the Senior Notes in accordance with the payment terms of the Senior Notes as in effect on the date hereof, provided that at the time of any Fiscal Yearsuch payment and immediately after giving effect thereto, no Default shall have occurred and be continuing;
(e) Holdings may make (and the Borrower may make dividends and distributions to Holdings in amounts sufficient to enable Holdings to make) regularly scheduled payments of interest under the Discount Notes in accordance with the payment terms of the Discount Notes as in effect on the date hereof, provided that at the time of any such dividend or payment and immediately after giving effect thereto, no Default shall have occurred and be continuing;
(f) Holdings may redeem (and the Borrower may make dividends and distributions to Holdings in amounts sufficient to enable Holdings to redeem) any of its capital stock or warrants or options to acquire any of its capital stock owned by any terminated employee, provided that (i) no Default or Event of Default has occurred and is continuing or would arise as a result of such payment, (ii) after giving effect to such payment, the Credit Parties are in compliance on a pro forma basis with the financial covenants set forth in Section 7.10 of this Agreement (recomputed for the most recent period for which financial statements have been delivered in accordance with the terms hereof after giving effect thereto), (iii) the aggregate amount of all such payments (whether made in cash, by the issuance of Indebtedness or otherwise) shall not exceed $2,000,000 during the term of this Agreement and (iv) the aggregate amount of all such payments made in cash shall not exceed $500,000 during the term of this Agreement; and
(g) To the extent permitted under the applicable Subordination Agreement, the applicable Credit Party may pay as and when due and payable regularly scheduled interest in respect of Subordinated Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Haights Cross Communications Inc)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay or make any Restricted Junior Payment or set apart any sum for Make any Restricted Junior Payment; provided, or that (ya) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower of Parent may declare and pay dividends to a Loan Party (other than Parent), (b) any Subsidiary of Parent may pay dividends to Parent (i) in amounts necessary to pay customary expenses of the Parent in the ordinary course of its business as a public holding company (including salaries and related reasonable and customary expenses incurred by employees of the Parent) and (ii) in amounts necessary to pay taxes when due and owing by Parent, (c) any Subsidiary of Parent or the applicable parent company of such Subsidiary may make other distributions ratably Restricted Junior Payments to its equity holders;
(iii) Borrower may declare such Subsidiary's shareholders and pay dividends, whether in Cash or Common Stock, employees and management personnel of such Subsidiary's shareholders pursuant to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as shareholder agreements or similar agreements between such Subsidiary or the applicable parent company of such Subsidiary and such shareholders, including without limitation payments in effect on respect of and pursuant to the date hereof;
Put Obligations, (ivd) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (xi) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or would otherwise arise as a result thereof, (ii) Excess Availability, after giving effect thereto, exceeds the Applicable Excess Availability Amount and (iii) Availability, after giving effect thereto, exceeds the Applicable Availability Amount, Parent and any Subsidiary of Parent may repurchase from its employees Stock of Parent or such Subsidiary up to an aggregate amount, for all such payment repurchases by Parent and all Subsidiaries of Parent permitted pursuant to this clause (d), not to exceed (I) $10,000,000 in any fiscal year or (II) $40,000,000 during the extent required by the terms term of the Existing Notes as Agreement, (e) any Loan Party may make payments in effect on the date hereof;
respect of Earn-outs, (vif) so long as (i) no Default or Event of Default shall have occurred exists or would otherwise arise as a result thereof, (ii) Excess Availability, after giving effect thereto, exceeds the Applicable Excess Availability Amount and be continuing (iii) Availability, after giving effect thereto, exceeds the Applicable Availability Amount, Parent may declare or shall be caused thereby, Borrower may purchase Capital pay dividends on account of Stock or options of Parent in respect an amount per fiscal year up to the lesser of Capital (x) the product of (I) $0.56 and (II) the number of outstanding shares of such Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower including unvested restricted shares and/or shares included in restricted stock units granted pursuant to the Parent's 2011 Stock Incentive Plan or any Subsidiary upon the deathsuccessor plan, disability, retirement, severance, but excluding any shares issued in a stock split or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(visimilar transaction) during any Fiscal Year shall not exceed in the aggregate the sum of and (ay) $500,000 plus 25,000,000, and (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(viig) so long as (i) no Default or Event of Default shall have occurred and be continuing exists or shall be caused therebywould otherwise arise as a result thereof, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Excess Availability, after giving effect thereto, exceeds the Applicable Excess Availability Amount and (iii) Availability, after giving effect thereto, exceeds the Applicable Availability Amount (such conditions, collectively, the "Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrantsPayment Basket Conditions"), options Parent and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower its Subsidiaries may make Restricted Junior Payments in the ordinary course of business in any fiscal year ending on or after December 31, 2013, not otherwise permitted pursuant to clauses (a) through (f) above, up to an aggregate amount not to exceed $350,000 an amount equal to (I) 75% of Excess Cash Flow for the immediately prior fiscal year, less (II) the amount of Restricted Junior Payments made pursuant to clause (f) of this Section 6.9 in such fiscal year; provided, however, that, if the amount of Restricted Junior Payments permitted by this clause (g) to be made in any fiscal year ending on or after December 31, 2013 is greater than the amount of the Restricted Junior Payments actually made in such fiscal year (the amount by which such permitted Restricted Junior Payments for such fiscal year exceeds the actual amount of Restricted Junior Payments made for such fiscal year, the "Restricted Junior Payments Carry-Over Amount"), then the Restricted Junior Payments Carry-Over Amount may be carried forward to the next succeeding fiscal year (the "Restricted Junior Payments Succeeding Fiscal Year"); provided further that the Restricted Junior Payments Carry-Over Amount applicable to a particular Restricted Junior Payments Succeeding Fiscal Year may not in any event be used unless the Restricted Junior Payment Basket Conditions are satisfied.
Appears in 1 contract
Samples: Credit Agreement (MDC Partners Inc)
Restricted Junior Payments. No Credit Party Neither Company nor any Guarantor Subsidiary shall, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly (x) declareindirectly, order, pay declare or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptexcept that:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iva) so long as no Event of Default pursuant to Section 8.1(a) shall have occurred and be continuing, Company may make payments to Holding to the extent required under the Corporate Services Reimbursement Agreement and Company may reimburse Holding for the fees and reasonable costs and expenses paid or payable by Holding related to any unsuccessful equity or debt offering of Holding or unsuccessful proposed Permitted Acquisition or Investment;
(b) Company and its Restricted Subsidiaries may make payments required under the Holding Tax Sharing Agreement; provided that in no event shall the amount paid by Company and its Subsidiaries exceed the consolidated tax liabilities that would be payable if Company and its Subsidiaries filed a consolidated tax return with Company as the parent company;
(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 and the Amendment and Restatement Effective Date Senior Notes 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 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 shall have occurred and be continuing or shall would be caused thereby, (x) regularly scheduled payments in the form of principal, Company may make additional Restricted Junior Payments to the extent provided for by, and in accordance withHolding, the terms proceeds of which may be utilized by Holding to make additional Restricted Junior Payments or otherwise, in an aggregate amount not to exceed the Existing Notes sum of (i) $200,000,000 in effect any Fiscal Year since the Closing Date (with any unused amounts accumulating on a cumulative basis since the date hereof Closing Date to each subsequent Fiscal Year) and (yii) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (Available Amount at such approval not to be unreasonably withheld or delayed)time;
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vie) so long as no Default or Event of Default shall have occurred and be continuing or shall would be caused thereby, Borrower Company may purchase Capital Stock or options make Restricted Junior Payments in respect of Capital Stock from withholding or similar Taxes payable by any future, present or former directorsemployee, officersdirector, consultantsmanager 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 employees exercise of options relating to, Capital Stock of Holding;
(or their respective spouses, ex-spouses, or estatesf) Company may make Restricted Junior Payments within sixty (60) days after date of Borrower or declaration of any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made Restricted Junior Payment if such Restricted Junior Payment was permitted pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in 6.4 on the aggregate the sum date of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Yeardeclaration thereof;
(viig) so long as no Default or Event of Default shall have occurred and be continuing or shall would be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower Company may (i) make Restricted Junior Payments on its to repurchase, redeem or otherwise acquire for value any Capital Stock that are deemed to occur upon the exercise of stock options Holding or warrants if Company representing fractional shares of such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchasesa stock dividend, split or combination or any merger, consolidation, amalgamation or other combination involving Holding or Company;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xiih) so long as no Default or Event of Default shall have occurred and be continuing or shall would be caused thereby, payments on account Company may make Restricted Junior Payments to redeem, repurchase, retire or otherwise acquire, in each case for nominal value per right, of Subordinated Indebtedness any rights granted to all holders of Capital Stock of Holding or Company pursuant to any stockholders’ rights plan adopted for the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a partypurpose of protecting stockholders from unfair takeover tactics;
(xiiii) so long as no Default or Event of Default shall have occurred and be continuing or shall would be caused thereby, Borrower or any Subsidiary of Borrower 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 ordinary course terms of business this Agreement;
(j) so long as no Event of Default shall have occurred and be continuing or would be caused thereby, Company may make Restricted Junior Payments that constitute a refinancing, refunding, extension, defeasance, discharge, renewal or replacement of Indebtedness permitted by Section 6.1 solely to the extent such Restricted Junior Payments are made with the proceeds of any Indebtedness permitted to be incurred by Section 6.1; and
(k) 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 Holding in an aggregate amount not cash so long as the Leverage Ratio as of the end of Fiscal Quarter immediately preceding the date of such Restricted Junior Payment on a Pro Forma Basis is less than 2.00:1.00. To the extent that any Restricted Junior Payment could be attributable to exceed $350,000 more than one subsection of this Section 6.4, Company may allocate such Restricted Junior Payment to any one or more of such subsections and in any Fiscal Yearno event shall the same portion of Restricted Junior Payment be deemed to utilize or be attributable to more than one item.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Covanta Holding Corp)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior PaymentPayment except that (a) the Company may make regularly scheduled payments of interest in respect of Senior Subordinated Notes, or (y) agree to declareRefinancing Notes and Additional Senior Subordinated Note in accordance with the terms of, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock only to the extent required by by, and subject to the terms subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued; (b) the Company may prepay or redeem the Senior Subordinated Notes in full with the proceeds of the Existing Preferred Stock as in effect on the date hereof;
Refinancing Notes; (ivc) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Company may make Restricted Junior Payments to Holdings to pay any non-recurring fees, cash charges and cost expenses incurred in connection with the issuance by Holdings or Parent of Capital Stock (xor capital contribution in respect thereof) regularly scheduled payments or Indebtedness, in the form of principal, each case only to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and that such transaction is not consummated; (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vid) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower to the extent permitted by Section 2.15(c), the Company may purchase Capital Stock prepay or options redeem the Senior Subordinated Notes, Additional Senior Subordinated Notes and Refinancing Notes in respect an aggregate amount not to exceed the Cash proceeds of any issuance of Capital Stock from present of Parent, Holdings or former directors, officers, consultants, or employees any of their respective Subsidiaries (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employeecapital contribution in respect thereof); provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (be) the aggregate amount, if any, of Company may make Restricted Junior Payments permitted to be madeHoldings (and Holdings may make Restricted Junior Payments to Parent) (i) in an aggregate amount not to exceed $400,000 in any Fiscal Year, but not madeto the extent necessary to permit Holdings or Parent to pay general administrative costs and expenses (including franchise taxes) and (ii) to the extent necessary to permit Holdings or Parent to discharge the consolidated tax liabilities of Holdings or Parent and its Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose; (f) the Company may on the Closing Date pay a Sponsor Fee to the Sponsors pursuant to this Section 6.4(viand as expressly required by the Sponsor Agreement and reimburse the Sponsors for reasonable out of pocket fees, costs and expenses incurred in connection with the Transactions within three hundred (300) during days of the immediately preceding Fiscal Year;
Closing Date; (viig) so long as no Default or Event of Default pursuant to Sections 8.1(a), 8.1(g) or 8.1(h) shall have occurred and be continuing or shall be caused thereby, the Company may pay the Sponsor Fees (plus reasonable expenses in connection with the Sponsor Agreement and unpaid amounts accrued for prior periods); (h) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Company and Holdings may declare and pay dividends or make other distributions to Parent the proceeds of which are to be used by Parent to purchase or redeem Capital Stock of Parent (including related stock appreciation rights or similar securities) held by then present or former officers or employees of Holdings, Company or any of their Subsidiaries or by any Pension Plan upon such person’s death, disability, retirement or termination of employment or under the terms of any such Pension Plan or any other agreement under which such shares of stock or related rights were issued or to redeem any notes issued by the Parent in lieu of such repurchases or redemptions; provided that the aggregate amount of such Cash purchases or redemptions under this paragraph (h) and any payments on account in respect of Indebtedness incurred pursuant to Section 6.1(c);
any such notes shall not exceed in any Fiscal Year $3,000,000 plus the unused portion of the permitted Restricted Junior Payments from this paragraph (viiih) Borrower may from any prior Fiscal Year; (i) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby and so long as no Equity Cure Period exists, the Company and its Subsidiaries may make additional Junior Restricted Junior Payments in an aggregate amount not to exceed $10,000,000 since the Closing Date; (j) Holdings may make on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of Closing Date the exercise price of such options or warrants payments required by the Easton Acquisition Agreement and (iik) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrantsafter December 31, options 2007 and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities so long as no Equity Cure Period exists and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which Company and the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower Subsidiaries may make additional Restricted Junior Payments in the ordinary course of business in an aggregate amount not exceeding the Available Amount immediately prior to exceed $350,000 in any Fiscal Yearthe time of the making of such Restricted Junior Payment; provided that immediately prior to such Restricted Junior Payment and immediately after giving effect thereto on a pro forma basis, the Leverage Ratio (as of the most recent date for which annual or quarterly financial statements are required to have been delivered pursuant to Section 5.1) is not greater than 4.25:1.00.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Easton-Bell Sports, Inc.)
Restricted Junior Payments. No Credit Party shall, Neither the Borrower nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay shall declare or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, exceptexcept for:
(i) Restricted Junior Payments made by Borrower dividends or distributions to Opco on the Capital Stock of any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Partyof Opco's wholly-owned Subsidiaries;
(ii) Borrower may declare for so long as no Event of Default has occurred and pay is continuing, dividends or make other distributions ratably to its equity holdersthe Borrower on the Capital Stock of Opco which, together with the principal amount of intercompany loans from Opco to the Borrower permitted under SECTION 8.01(viii), shall not exceed an aggregate amount of $600,000 in any Fiscal Year, PROVIDED, that the proceeds of such intercompany loans, dividends or distributions shall be used by the Borrower solely to pay (A) operating expenses of the Borrower in an amount not to exceed $50,000 in any Fiscal Year, (B) accrued interest on the Term Loans or the PIK Dividend Notes (including, without limitation, that portion of the principal amount of the Initial Term Loan or the PIK Dividend Notes attributable to interest which has been capitalized in accordance with this Agreement or the PIK Dividend Note Agreement, as applicable) and (C) if and only if all accrued interest on the Term Loans and the PIK Dividend Notes (including, without limitation, that portion of the principal amount of the Initial Term Loan or the PIK Dividend Notes attributable to interest which has been capitalized in accordance with this Agreement or the PIK Dividend Note Agreement, as applicable) as of the then most recent date on which interest on any Term Loan or the PIK Dividend Notes is payable has been (or will concurrently therewith) paid in full in cash, dividends or distributions on the Preferred Stock of the Borrower;
(iii) Borrower may declare and pay dividends, whether in Cash dividends or Common Stock, to holders of Existing distributions on the Preferred Stock on of the Existing Preferred Stock Borrower in PIK Dividend Notes to the extent required permitted by the terms PIK Dividend Note Agreement or in cash to the extent permitted by SECTION 8.06(ii)(C), PROVIDED, HOWEVER, that no such dividends or distributions may be made or paid in any fiscal quarter of the Existing Preferred Stock as Borrower in effect on which an Event of Default has occurred or is continuing and the date hereof;Lender has delivered written notice to the Borrower that such dividends or distributions are prohibited under this SECTION 8.06, PROVIDED, FURTHER, HOWEVER, that if such Event of Default is the result of a breach of any covenant in ARTICLE IX of this Agreement, such Event of Default shall be deemed to be cured solely for purposes of permitting the payment of dividends or distributions under this SECTION 8.06 upon the Borrower's compliance with such covenant for each of the two (2) fiscal quarters immediately following the fiscal quarter with respect to which such Event of Default occurred; and
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, addition to the extent provided for bydividends and distributions to the Borrower on the Capital Stock of Opco permitted under SECTION 8.06(ii), dividends and in accordance withdistributions to the Borrower on the Capital Stock of Opco, the terms proceeds of which, together with the Existing proceeds of intercompany loans from Opco to the Borrower permitted under SECTION 8.01(ix), are used to pay the outstanding Indebtedness under this Agreement and the respective Term Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal YearScheduled Maturity Date.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shallThe Borrower will not, nor shall will it permit any of its Subsidiaries Subsidiary to, directly or indirectly (x) declare, orderindirectly, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(a) (i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have has occurred and be is continuing or shall would be caused thereby, redemptions, repurchases, retirement or other acquisition by the Borrower of Capital Stock of the Borrower from future, present or former officers, directors, employees, advisors or consultants or their respective estates, trusts, family members or former spouses of any Credit Party or any Subsidiary (xor their Affiliates) regularly scheduled pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any equity subscription or equity holder agreement; provided that in all such cases the aggregate amount of such payments in respect of all such Capital Stock so redeemed, repurchased, retired or acquired does not exceed in any Fiscal Year (with unused amounts in any Fiscal Year rolled over to the form immediately succeeding Fiscal Year) the greater of principal(1) $25,000,000 and (2) an amount equal to 5% of LTM Consolidated Adjusted EBITDA, plus (A) 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, (B) 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 provided for by, and in accordance with, not otherwise used under this Agreement or applied to the terms of the Existing Notes in effect on the date hereof Available Amount and (yC) voluntary prepayments the amount of the Existing Notesany cash bonuses or other compensation otherwise payable to any future, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directorsdirector, officersemployee, consultants, consultant or employees (or their respective spouses, ex-spouses, or estates) distributor of the Borrower or any Subsidiary upon that are foregone in return for the death, disability, retirement, severance, or termination redemption of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are of the Borrower; and (ii) cashless repurchases of Capital Stock deemed to occur upon the exercise of stock options options, warrants, settlements or warrants vesting if such Capital Stock stock represents a portion of the exercise price thereof;
(b) payments in the form of Capital Stock of the Borrower or from the proceeds of. or in exchange for, any substantially contemporaneous issuance of Capital Stock of the Borrower (in each case, 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 (A) make all regularly scheduled payments of principal, interest, fees and premiums and all payments of indemnities and expenses in respect of any Junior Financing when due; provided that, for the avoidance of doubt, this clause (A) shall not apply to any payment in respect of the outstanding principal amount of any Convertible Notes in connection with the redemption, repurchase, conversion or settlement thereof pursuant to the Convertible Notes Indenture, (B) pay customary closing, consent and similar fees related to any Junior Financing, (C) make mandatory prepayments, mandatory redemptions and mandatory purchases or offers to purchase in connection with a “change of control”, “asset sale,” or fundamental change 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) of such options Junior Financing, (D) prepay Indebtedness (x) of the Borrower or warrants any Subsidiary owed to the Borrower or any Guarantor Subsidiary, (y) of any Non-Credit Party owed to any Non-Credit Party or (z) 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 and (E) prepay or refinance or pay any other amounts owed in connection with any Junior Financing (including the payment of any premium in connection therewith) with the proceeds of any Indebtedness permitted by Section 6.1 (including any Permitted Refinancing thereof);
(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) make the Total Net Leverage Ratio on a Pro Forma Basis would be less than or equal to 4.00:1.00;
(g) Restricted Junior Payments, so long as (i) no Event of Default has occurred and is continuing at such time or would result from the making of such Restricted Junior Payment, (ii) the Total Net Leverage Ratio on a Pro Forma Basis would be less than or equal to 2.00:1.00 and (iii) the Available Amount is greater than or equal to $0;
(h) as long as no 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 the greater of (x) $75,000,000 and (y) an amount equal to 15% of LTM Consolidated Adjusted EBITDA;
(i) cash payments in lieu of the issuance of fractional shares in connection with the retention redemption, repurchase, conversion or other settlement of Convertible Notes or Other Convertible Notes with or into shares of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities Borrower (other than Disqualified Capital Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewithConvertible Notes Indenture or any Other Convertible Notes Indenture applicable thereto, as the case may be;
(xj) Restricted Junior Payments with respect to the Convertible Notes and any settlement thereof (including cash settlement payments owing in connection with the conversion or settlement thereof) at such times, in such amounts, for such consideration (whether cash, common Capital Stock of the Borrower, or a combination of both), and on such other terms, as, in each case, may be required by the terms of the Convertible Notes Indenture, so long as (i) no Event of Default has occurred and is continuing at such time or would result after giving effect thereto, (ii) immediately after giving effect to such Restricted Debt Payment, the Borrower and its Subsidiaries have Unrestricted Cash of not less than $50,000,000, and (iii) (x) the amount of such Restricted Debt Payments (to the extent made in cash) are otherwise permitted to be made pursuant to (and are deemed to occur upon charged as a utilization of) Section 6.4(f), (g) and/or (h) and/or (y) the settlement amount of any Swap Agreements such Restricted Debt Payments are not otherwise prohibited hereunder;
(xi) payments permitted to be made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with Section 6.4(f), (g) and/or (h); provided, that in the issuance case of this clause (y), the amount by which such Restricted Debt Payment (to the extent actually paid in cash) exceeds the amount of Restricted Debt Payments that could otherwise be made at such time under Sections 6.4(f), (g) and/or (h), the amount of such Common Stockexcess (the “Convertible Notes Shortfall Amount”), shall be applied to reduce the Available Amount on a dollar-for-dollar basis (such that the Available Amount may be less than zero);
(xiik) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to Restricted Junior Payments made by the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary in connection with the Series A Preferred Stock of Lumentum Inc. that is issued and outstanding as of the Closing Date (and any additional shares of Series A Preferred Stock issued in connection with any dividend, distribution, split, or other adjustment in respect of such shares following the Closing Date); and
(l) the settlement of warrants that constitute a Permitted Call Spread Hedging Agreement related to the Convertible Notes or any Other Convertible Notes (a) by delivery of shares of the Borrower’s common stock upon settlement thereof and/or (b) by (x) set-off against the call option purchased in connection with the same Permitted Call Spread Hedging Agreement; and/or (y) payment of an early termination amount thereof upon any early termination thereof in common stock of the Borrower and/or, in the case of a nationalization, insolvency, tender offer, merger event or other extraordinary event (as a result of which holders of the Borrower’s common stock are entitled to receive cash for their shares of the Borrower’s common stock) or similar transaction with respect to the Borrower or the common stock of the Borrower, cash; provided that any such payment in cash shall only be permitted, so long as (i) no Event of Default has occurred and is continuing at such time or would result after giving effect thereto, (ii) immediately after giving effect to such payment, the Borrower and its Subsidiaries have Unrestricted Cash of not less than $50,000,000, and (iii) (x) the amount of such payments (to the extent made in cash) are otherwise permitted to be made pursuant to (and are deemed charged as a utilization of) Section 6.4(f), (g) and/or (h) and/or (y) the amount of such payments are not otherwise permitted to be made pursuant to Section 6.4(f), (g) and/or (h), provided, that in the case of this clause (y), the amount by which such payments (to the extent actually paid in cash) exceeds the amount of Restricted Debt Payments that could otherwise be made at such time under Sections 6.4(f), (g) and/or (h), the amount of such excess (the “Permitted Call Spread Shortfall Amount”) shall be applied to reduce the Available Amount on a dollar-for-dollar basis (such that the Available Amount may make be less than zero). 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 Payments, be utilized by the Borrower or any Subsidiary to make or hold any Investments without regard to Section 6.6;
(2) for the avoidance of doubt, if the Borrower or any Subsidiary makes any Restricted Junior Payment 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 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 Agreement; and
(4) in the ordinary course event that any Restricted Junior Payment (or any portion thereof) meets the criteria of business more than one of the clauses of this Section 6.4, the Borrower may, in an aggregate amount not to exceed $350,000 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 (or any portion thereof) in any Fiscal Yearmanner that complies with this covenant.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Lumentum Holdings Inc.)
Restricted Junior Payments. No Credit Party shallDeclare, nor shall it permit any of its Subsidiaries topay, directly make or indirectly (x) set apart, or agree to declare, orderpay, pay or make any Restricted Junior Payment or set apart apart, any sum for any Restricted Junior Payment, or except that
(ya) agree the Company and its Subsidiaries may make regularly scheduled payments in respect of any Subordinated Indebtedness in accordance with the terms of, and only to declarethe extent not prohibited by, orderand subject to the subordination provisions pursuant to which such Subordinated Indebtedness was issued and, pay or if applicable, pursuant to the Interco Subordination Agreement;
(b) each Subsidiary may make any Restricted Junior Payment or set apart any sum for any Payments to the Company and to Subsidiaries and, so long as no Default shall have occurred and be continuing in the case of a Restricted Junior PaymentPayment by a non-wholly-owned Subsidiary, except:to the Company, any other Subsidiary and to other owners of Capital Stock of such Subsidiary on a pro rata basis based on their relative ownership interests;
(i) Restricted Junior Payments made by Borrower to any Credit Partythe Company and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock of such Person, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower Solectron Global Services Canada Inc. or 3942163 Canada Inc. may declare and pay dividends or make other distributions ratably with respect to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent non-voting exchangeable shares as required by the instruments currently in effect governing the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default such shares; provided that, any such dividend or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments distribution that is not in the form of principal, to such non-voting exchangeable Shares shall be deemed a dividend or distribution made by the extent provided Company for bypurposes of Section 7.06(f), and in accordance with, the terms of Company must have sufficient availability under such subclause to permit the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld dividend or delayed)distribution;
(vd) cash the Company and each Subsidiary may (i) purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares or prepay Subordinated Indebtedness with the proceeds received from the substantially concurrent issue of new shares of its common stock or (ii) prepay Subordinated Indebtedness with the proceeds received from the substantially concurrent issue of new Subordinated Indebtedness, provided that, in each case, no Default has occurred and is continuing;
(e) the Company and its Subsidiaries may make payments or distributions to dissenting stockholders pursuant to applicable law pursuant to or in respect of accrued but unpaid interest connection with a Permitted Acquisition;
(f) the Company may make Restricted Junior Payments up to an amount equal to the extent expressly provided for bygreater of (i) $50,000,000 and (ii) $50,000,000 plus 50% of positive Consolidated Net Income, and in accordance withif any, the terms and conditions of the Existing NotesCompany and its Subsidiaries for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the Closing Date to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Junior Payment (or if such Consolidated Net Income for such period is a deficit, as minus an amount equal to the sum of 100% of such deficit plus Cash Restructuring Charges and Non-Cash Restructuring Charges, in effect each case determined on an after-tax basis and deducted in calculating Consolidated Net Income for such period), computed on a cumulative basis with other such transactions under this Section 7.06(f) by the date hereofCompany since that date; provided, so long as no Default or Event of Default exists before or that, immediately after giving effect to such payment proposed action, no Default would exist; and provided further, that, notwithstanding anything to the contrary in this Section 7.06(f), the Company shall not make any Restricted Junior Payment of the type described in clause (ii) of the definition of Restricted Junior Payment to the extent required by it relates to common stock of the Company; and
(g) the Company may make (i) any payment on or with respect to, or repurchase, redeem, defease or acquire or retire for value, any Convertible Notes of the Company in connection with an optional redemption of such Convertible Notes pursuant to the terms thereof, provided that the current market price per share of the Existing Company's common stock (calculated based upon the average closing price as reported on the New York Stock Exchange (or other national securities exchange on which such common stock is listed) for the 30-trading day period immediately preceding the date any notice of redemption is sent or published) into which such Convertible Notes as is convertible equals or exceeds 150% of the conversion price in effect for such Convertible Notes on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such directornotice, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the any payment of cash in lieu of any fractional shares deliverable upon conversion of any such Convertible Notes in connection therewith;
(x) compliance with the terms of the instruments governing such Convertible Notes; provided that, in each case, any amounts paid in cash pursuant to this subsection will reduce the amount available for Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stockunder Section 7.06(f);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Year.
Appears in 1 contract
Samples: Credit Agreement (Solectron Corp)
Restricted Junior Payments. No The Credit Party shallParties shall not, nor and shall it not permit any of its their respective Subsidiaries to, directly or indirectly (x) indirectly, declare, order, pay or pay, make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, or (y) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except; provided that:
(i) Restricted Junior Payments made 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 to of any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not interest in a Credit Party to any other Subsidiary that is not 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 result therefrom, 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 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);
(iii) 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 terminate up to an aggregate amount which, together with the aggregate amount of Cash dividends permitted to be made pursuant to clause (v) below, does not exceed the applicable Available Restricted Payments Amount, of the public Securities of Holdings in any Fiscal Year;
(iv) as long as no Event of Default or Potential Event of Default has occurred and is continuing or would result therefrom: 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 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 connection with the vesting of such Securities;
(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 or make other distributions ratably to its equity holdersHoldings 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;
(iiivi) Borrower may declare (a) make regularly scheduled fees, interest and pay dividendsprincipal payments on Second Lien Indebtedness, whether in (b) make prepayments of the Second Lien Indebtedness solely with the proceeds of any Cumulative Available Excess Cash Flow Amount at such time if, after giving thereto and the application of the proceeds therefrom, Borrower’s Consolidated Total Debt Ratio calculated on a Pro Forma Basis as of the last day of the last Fiscal Quarter for which financial statements are required to be delivered hereunder would not exceed 3:50:1:00; and (c) consummate a Second Lien Permitted Refinancing if (x) no Event of Default or Common StockPotential Event of Default has occurred and is continuing or would result therefrom and (y) the agent (or lender, to holders of Existing Preferred Stock on the Existing Preferred Stock as applicable) under such refinanced Second Lien Indebtedness shall have executed and delivered documentation satisfactory to the extent required Administrative Agent pursuant to which such agent or lender, as applicable, has confirmed that it is bound by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, (x) regularly scheduled payments in the form of principal, to the extent provided for by, and in accordance with, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed);
(v) cash payments in respect of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employeeIntercreditor Agreement; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;and
(vii) so long as no Default or Event of Default shall have has occurred and be continuing under Section 8.1, 8.6 or shall be caused thereby8.7, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (ia) make Restricted Junior Payments regularly scheduled interest (at the non-default rate) and principal payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion Permitted Seller Notes and (b) make prepayments of the exercise price of such options or warrants and (ii) make Restricted Junior Payments Permitted Seller Notes, in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans each case to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) not prohibited by the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearprovisions thereof.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay or make any Restricted Junior Payment or set apart any sum for Make any Restricted Junior Payment; provided, or (y) agree to declarethat, orderso long as it is permitted by law, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or any other Credit Party and Restricted Junior Payments made by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(ii) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(iv) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused therebywould result therefrom,
(a) Parent may make distributions to former employees, officers, or directors of Parent (xor any spouses, ex-spouses, or estates of any of the foregoing) regularly scheduled payments 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 principalforgiveness 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 extent provided for byfollowing conditions is satisfied, (i) such dividends shall be paid with funds legally available therefore and in accordance with, (ii) such dividends shall not violate any law or regulation or the terms of any indenture, agreement or undertaking to which such Borrower 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) as of the Existing Notes in date of any such payment, and after giving effect thereto, either: (A) (1) the daily average of the Excess Availability for the immediately preceding ninety (90) consecutive day period shall have been not less than fifteen percent (15%) of the Maximum Revolver Amount and, on a pro forma basis using the Excess Availability as of the date of the most recent calculation of the Borrowing Base immediately prior to any such payment, the Excess Availability shall be not less than fifteen percent (15%) of the Maximum Revolver Amount and (2) on a pro forma basis, the Fixed Charge Coverage Ratio for the twelve (12) month period ending on the last day of the month prior to the date hereof 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 recent 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 (yiii) voluntary prepayments the purpose of such payment, Provided, that, notwithstanding the Existing Notesfailure to comply with the conditions set forth in Section 6.9(d) above, subject to the prior approval of the Administrative Agent and Requisite Lenders (Parent may repurchase its Stock for consideration in an aggregate amount for all such approval repurchases not to be unreasonably withheld or delayed);
(v) cash exceed $5,000,000, so long as all payments in respect of accrued but unpaid interest to such repurchases shall be included as Fixed Charges, on a pro forma basis, in the extent expressly provided for by, and in accordance with, the terms and conditions calculation of the Existing Notes, as in effect on Fixed Charge Coverage Ratio (such that all such payments shall be deemed to have been made at the date hereof, so long as no Default or Event commencement of Default exists before or the applicable period) and after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as thereto, no Default or Event of Default shall exist or have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are deemed to occur upon the exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants and (ii) make Restricted Junior Payments in connection with the retention of Capital Stock in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent is a party;
(xiii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 in any Fiscal Yearcontinuing.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly (x) declare, order, pay or make any Restricted Junior Payment or set apart any sum for Make any Restricted Junior Payment; provided, or however, that, so long as it is permitted by applicable law,
(ya) agree to declare, order, pay or make any Restricted Junior Payment or set apart any sum for any Restricted Junior Payment, except:
(i) Subsidiary of Borrower that is a Guarantor may make Restricted Junior Payments made by Borrower to any Credit Party, Restricted Junior Payments made by any Subsidiary to Borrower or another Restricted Subsidiary of Borrower that is a Guarantor;
(b) any other Credit Party and Restricted Junior Payments made by any Subsidiary of Borrower that is not a Credit Party Guarantor may make Restricted Junior Payments to any other Borrower or another Restricted Subsidiary that is not a Credit Partyof Borrower;
(iic) Borrower may declare and pay dividends or make other distributions ratably to its equity holders;[intentionally omitted]; and
(iii) Borrower may declare and pay dividends, whether in Cash or Common Stock, to holders of Existing Preferred Stock on the Existing Preferred Stock to the extent required by the terms of the Existing Preferred Stock as in effect on the date hereof;
(ivd) so long as no Default or Event of Default shall have has occurred and be is continuing or shall would be caused thereby, the preceding provisions shall not prohibit:
(xi) regularly scheduled payments the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement;
(ii) other than with the proceeds of the Going Private Equity Contribution, the making of any Restricted Junior Payment in exchange for, or out of the form net cash proceeds of principalthe substantially concurrent sale (other than to a Subsidiary of Borrower) of, Equity Interests of Borrower (other than Prohibited Preferred Stock) or from the substantially concurrent contribution of common equity capital to Borrower;
(iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of Borrower or any Restricted Subsidiary of Borrower that is a Guarantor that is contractually subordinated in right of payment to the extent Obligations with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(iv) a Restricted Junior Payment made in cash for the purpose of repurchasing, redeeming or otherwise acquiring or retiring any Equity Interests of Borrower, any Restricted Subsidiary of Borrower or any direct or indirect parent of Borrower held by any current or former officer, director or employee of Borrower or any of its Restricted Subsidiaries or its direct or indirect parent, as the case may be, pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided for bythat the aggregate amount of Restricted Junior Payments permitted pursuant to this clause (iv) may not exceed $750,000 during any 12-month period; provided, however, that any amount not paid in a 12 month period shall be added to, and in accordance withavailable in, the terms of the Existing Notes in effect on the date hereof and (y) voluntary prepayments of the Existing Notes, subject to the prior approval of the Administrative Agent and Requisite Lenders (such approval not to be unreasonably withheld or delayed)subsequent 12 month periods;
(v) cash payments in respect the repurchase of accrued but unpaid interest to the extent expressly provided for by, and in accordance with, the terms and conditions of the Existing Notes, as in effect on the date hereof, so long as no Default or Event of Default exists before or after giving effect to such payment and to the extent required by the terms of the Existing Notes as in effect on the date hereof;
(vi) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may purchase Capital Stock or options in respect of Capital Stock from present or former directors, officers, consultants, or employees (or their respective spouses, ex-spouses, or estates) of Borrower or any Subsidiary upon the death, disability, retirement, severance, or termination of employment of such director, officer, consultant or employee; provided that the aggregate cash amount of payments made pursuant to this Section 6.4(vi) during any Fiscal Year shall not exceed in the aggregate the sum of (a) $500,000 plus (b) the aggregate amount, if any, of Restricted Junior Payments permitted to be made, but not made, pursuant to this Section 6.4(vi) during the immediately preceding Fiscal Year;
(vii) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, payments on account of Indebtedness incurred pursuant to Section 6.1(c);
(viii) Borrower may (i) make Restricted Junior Payments on its Capital Stock that are Equity Interests deemed to occur upon the exercise of stock options or warrants if to the extent such Capital Stock represents Equity Interests represent a portion of the exercise price of such options or warrants and those stock options; and
(iivi) make Restricted Junior Payments the payment of merger consideration in connection with the retention consummation of Capital Stock the Going Private Transactions consisting solely of (A) the proceeds of the Going Private Equity Contribution, (B) the Senior Secured Notes Excess Proceeds in payment the Restricted Account, and (C) not more than $5,000,000 of withholding taxes cash of Borrower and its Restricted Subsidiaries, if and so long as (x) the Going Private Transactions are consummated on or before December 31, 2010, (y) Availability plus Qualified Cash of Borrower and its Restricted Subsidiaries both before and immediately after giving effect thereto is greater than $25,000,000, and (z) in connection therewith, the Xxxxxxxx Group executes and delivers a joinder to the Guaranty and Security Agreement, in form and substance reasonably satisfactory to Agent (provided that the joinder will not prohibit the Xxxxxxxx Group from dissolving or merging into Borrower);
(vii) the designation of the Saltgrass Entities as Unrestricted Subsidiaries provided that (A) such designation is made in connection with equity-based compensation plans the consummation of a Qualified IPO, (B) immediately after giving effect to such designation and any related transactions, Borrower’s First Lien Leverage Ratio is less than or equal to 1.0:1.0, and (C) the extent that net share settlement arrangements Net Cash Proceeds received by Borrower, by its Restricted Subsidiaries, or by Saltgrass from such Qualified IPO are deemed to be repurchasesapplied in accordance with Section 2.4(e)(iii);
(viii) Permitted Tax Distributions;
(ix) the conversion of convertible securities (including warrants, options and convertible debt securities otherwise permitted under Section 6.1) into other equity securities (other than Disqualified Stock) pursuant to the terms of such convertible securities and the payment of cash in lieu of fractional shares in connection therewith;
(x) Restricted Junior Payments deemed to occur upon the settlement of any Swap Agreements not otherwise prohibited hereunder;
(xi) payments made using solely Common Stock of Borrower or made using the proceeds of, or in exchange for, a substantially contemporaneous issuance of Common Stock of Borrower (either by way of a substantially contemporaneous exchange or use of proceeds or pursuant to a repurchase plan established substantially contemporaneously with the issuance of such Common Stock);
(xii) so long as no Default or Event Availability plus Qualified Cash of Default shall have occurred Borrower and be continuing or shall be caused thereby, payments on account of Subordinated Indebtedness to the extent that such payments are permitted under any intercreditor agreement or subordination agreement, as applicable, to which the Administrative Agent its Restricted Subsidiaries both before and immediately after giving effect thereto is a party;greater than $25,000,000,
(xiiiA) so long as no Default or Event the declaration and payment of Default shall have occurred and be continuing or shall be caused thereby, dividends by Borrower or any Subsidiary of Borrower may make Restricted Junior Payments in the ordinary course of business in an aggregate amount not to exceed $350,000 2,500,000 in any calendar year, and
(B) the making of Restricted Junior Payments (1) during 2009 in an amount not to exceed $2,500,000, (2) during 2010 in an amount not to exceed $10,000,000, and (3) during each calendar year thereafter in an amount not to exceed $10,000,000; provided, however, that if the amount of Restricted Junior Payments permitted to be made in any fiscal year as set forth in this clause (ix)(B) is greater than the amount of Restricted Junior Payments actually made in such fiscal year (such amount, the “Excess RJP Amount”), then such Excess RJP Amount may be carried forward to the next succeeding fiscal year (the “Succeeding Fiscal Year”); provided further that the Excess RJP Amount applicable to a particular Succeeding Fiscal Year may not be used in that fiscal year until the amount permitted in this clause (ix)(B) to be expended in such fiscal year has first been used in full and the Excess RJP Amount applicable to a particular Succeeding Fiscal Year may not be carried forward to another fiscal year. The amount of all Restricted Junior Payments (other than cash) will be the Fair Market Value on the date of the Restricted Junior Payment of the asset(s) or securities proposed to be transferred or issued by Borrower or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Junior Payment. The Fair Market Value of any assets or securities that are required to be valued by this covenant will be determined by the Board of Directors of Borrower whose resolution with respect thereto will be delivered to Agent. The Board of Directors’ determination must be based upon an opinion or appraisal issued by a reputable accounting, appraisal or investment banking firm if the Fair Market Value exceeds $10,000,000.
Appears in 1 contract
