Restricted Junior Payments. The Borrower will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereof.
Appears in 4 contracts
Samples: Credit Agreement, Term Loan Agreement (Facebook Inc), Credit Agreement (Facebook Inc)
Restricted Junior Payments. The Borrower will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends Declare or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make any Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Yearexcept:
(i) [Intentionally Omitted]
(1) [Intentionally Omitted]
(2) [Intentionally Omitted]
(3) [Intentionally Omitted]
(ii) provided that no Application Event has occurred and is continuing immediately prior to such Restricted Junior Payments, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers each Subsidiary of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the a Borrower may make additional cash Restricted Junior Payments so long dividends or distributions to that Borrower;
(iii) provided that the Payment Conditions are satisfied both immediately before and immediately after giving effect to such dividends or distributions and Administrative Borrower shall have delivered to Agent a certificate of a financial officer of Administrative Borrower certifying as to compliance with clauses (a) and (b) of the Payment Conditions and demonstrating (in reasonable detail) the calculations required by clause (b) thereof, Boise Cascade may make the following dividends and distributions to the extent not otherwise prohibited under this Agreement:
(1) following an IPO, Boise Cascade may pay any dividends or distributions within 60 days after the date of declaration thereof if (1) at the date of declaration such dividend or distribution would have complied with this Section 6.9(a), (2) at the time of and after giving effect to each such Restricted Junior Payment, (i) dividend or distribution no other Default or Event of Default shall have occurred and be continuing (or result therefrom), and (ii3) Boise Cascade has public shareholders on the sum date of declaration of such dividends or distributions;
(2) [Intentionally Omitted]
(3) repurchases of Stock deemed to occur upon exercise of stock options if such Stock represent a portion of the amount exercise price of such Restricted Junior Payment and options; and
(4) cash payments in lieu of the aggregate amount issuance of all prior Restricted Junior Payments made fractional shares in reliance on this clause (e) connection with the exercise of warrants, options or other securities convertible into or exchangeable for Stock of Boise Cascade or in connection with a merger, consolidation, amalgamation or other combination involving Boise Cascade; provided, however, that any such cash payment shall not exceed 50% be for the purpose of evading the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which limitation of this Section 6.9 (as determined in good faith by the financial statements required by Section 5.01(bboard of directors or equivalent governing body of Boise Cascade); and
(iv) shall have been delivered, commencing with provided that the Fiscal Year ending December 31, 2012, taken as a single accounting period Payment Conditions are satisfied both immediately before and (iii) the immediately after giving effect to such dividends or distributions and Administrative Borrower shall have delivered to the Administrative Agent a certificate of the chief a financial officer of the Administrative Borrower demonstrating certifying as to compliance with clauses (ia) and (iib) above, together with, of the Payment Conditions and demonstrating (in reasonable detail) the case of calculations required by clause (ii)b) thereof, reasonably detailed calculations in support thereofBoise Cascade may make any other additional dividends or distributions to the extent not otherwise prohibited under this Agreement.
(v) [Intentionally Omitted]
(vi) [Intentionally Omitted]
(vii) [Intentionally Omitted]
(b) Create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary of any Borrower to make any dividends or distributions to that Borrower, except for restrictions under the Loan Documents, under Applicable Law, or pursuant to a Permitted Restricted Agreement.
Appears in 3 contracts
Samples: Credit Agreement (BOISE CASCADE Co), Credit Agreement (BOISE CASCADE Co), Credit Agreement (BOISE CASCADE Co)
Restricted Junior Payments. The Borrower will not, and Credit Parties will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior PaymentPayment at any time; provided, or incur any obligation (contingent or otherwise) to do sohowever, except that (a) the Borrower or any Subsidiary of any Core Ameresco Company may declare and pay dividends, and make other distributions, with respect dividends to its Equity Interests payable solely in additional Equity Interests, such Core Ameresco Company; (b) any Subsidiary may declare so long as no Default or Event of Default has occurred and pay dividends is continuing and no Default or make other distributions with respect to its Equity Interests ratably to the holders Event of such Equity InterestsDefault shall be caused thereby, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel purchase (i) the capital stock or Equity Interests Rights of any employee, officer or rights director of any Credit Party for aggregate cash consideration not to exceed $1,000,000 in respect thereof granted to directors, officers, employees any fiscal year and (ii) warrants or other providers equity interests held by Boston Capital for aggregate cash consideration not in excess of services to $11,320,000 at any time from and after the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and Restatement Date; (ec) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and no Default or Event of Default shall be caused thereby, the Borrower may declare and pay cash dividends, provided that (i) such payments shall be made only during the period commencing not earlier than 10 days after and ending not later than 90 days after, the date of delivery of the audited annual financial statements for the previous fiscal year required to be delivered by the Credit Parties pursuant to Section 7.1 (a) hereof, together with the Compliance Certificate required to be delivered pursuant to Section 7.1(c) hereof, and (ii) the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower Credit Parties shall have delivered to the Administrative Agent a certificate of evidence that after giving effect to such payment, the chief financial officer of the Borrower demonstrating Credit Parties shall be in projected pro-forma compliance with clauses (i) the financial covenants set forth in Section 8.10 hereof for the period of four fiscal quarters occurring immediately after such payment; and (iid) aboveso long as no Default under Section 9.1(a)(ii) or Event of Default shall have occurred and be continuing and no Event of Default shall be caused thereby, together with, the Credit Parties may make regularly scheduled payments of interest but no principal in respect of Subordinated Indebtedness on the dates and in the case of clause (ii), reasonably detailed calculations amounts set forth in support thereofthe applicable Subordinated Debt Documents.
Appears in 3 contracts
Samples: Credit and Security Agreement (Ameresco, Inc.), Credit and Security Agreement (Ameresco, Inc.), Credit and Security Agreement (Ameresco, Inc.)
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries or Affiliates through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that that:
(a) Borrower may make regularly scheduled payments of principal and interest and may make payments of fees, expenses and any other amount (including, for the avoidance of doubt, mandatory prepayments required under the Second Lien Credit Agreement to the extent permitted under Section 2.15(b) or 2.15(c)), in each case, due in respect of the Indebtedness incurred under the Second Lien Credit Agreement;
(b) Borrower or any Subsidiary of its Subsidiaries may declare make Restricted Junior Payments to Holdings, the proceeds of which will be used by Holdings for distributions to Parent to (i) pay franchise taxes and other fees, taxes and expenses required to maintain Parent’s corporate existence and (ii) permit Parent to discharge its income tax liability, if any, associated solely with the consolidated taxable income of Holdings and its Subsidiaries which Parent must take into account in calculating its own income tax liability; provided that any such amounts received from Borrower or Holdings shall be paid over to the appropriate taxing authority within 60 days of the direct or indirect parent’s receipt of such amounts or refunded to Borrower or Holdings, as the case may be,
(c) Borrower or any of its Subsidiaries may make Restricted Junior Payments to Holdings, the proceeds of which will be used by Holdings for distributions to Parent to pay dividends(i) general corporate operating and overhead costs and expenses of Parent to the extent such costs and expenses are reasonably attributable to the ownership or operation of Holdings and its Subsidiaries, (ii) reasonable and make customary salary, bonus and other distributionsbenefits payable to officers and employees of Parent to the extent such salaries, bonuses and other benefits are reasonably attributable to the ownership or operation of Holdings and its Subsidiaries and (iii) fees and expenses (other than to Affiliates of Holdings) related to any secondary equity or debt offering or any unsuccessful primary equity or debt offering of Parent to the extent the offering memorandum with respect to such equity or debt offering provided that the proceeds of such equity or debt offering were to be contributed to Holdings or its Equity Interests payable solely Subsidiaries, in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions an aggregate amount with respect to its Equity Interests ratably to the holders of such Equity Interests, this clause (c) not exceeding an amount during any Fiscal Year equal to the sum of (A) $5,000,000 and (B) the amount of any net cash proceeds received from the issuance of Equity Interests by, or capital contributions made to, Holdings after the Closing Date and not used to make a Specified Investment within 90 days following receipt thereof (plus any such amount permitted without giving effect to this parenthetical in the immediately preceding Fiscal Year but not so utilized);
(d) Borrower or any of its Subsidiaries may make Restricted Junior Payments to Holdings, the proceeds of which will be used by Holdings for distributions to Parent (i) to pay reasonable and customary fees payable to any directors of Parent and reimbursement of reasonable out-of-pocket costs of the directors of Parent in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of Holdings and its Subsidiaries, (ii) to pay reasonable and customary indemnities to directors, officers and employees of Parent in the ordinary course of business, to the extent reasonably attributable to the ownership or operation of Holdings and its Subsidiaries, (iii) to pay cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Parent in an aggregate amount not exceeding $50,000 during any Fiscal Year, (iv) to pay amounts due in accordance with the Acquisition Agreement, and (v) to the extent necessary to permit Parent to discharge its other permitted liabilities in an aggregate amount not to exceed $1,500,000 so long as Parent applies the amount of any such Restricted Junior Payment for such purpose;
(e) Borrower and its Subsidiaries may make Restricted Junior PaymentsPayments to Holdings, not exceeding $100,000,000 the proceeds of which will be used by Holdings for distributions to Parent, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Borrower and its Subsidiaries and to fund any repurchase or redemption by Parent of its Equity Interests from former members of management, former employees, former consultants, or former directors of the Credit Parties or their respective estates, spouses, former spouses, family members or other permitted transferees; provided that the aggregate amount applied for all such purposes shall not exceed $15,000,000 during any Fiscal Year;
(f) Borrower or any of its Subsidiaries may make Restricted Junior Payments to Holdings to pay reasonable and customary salary, bonus and other benefits payable to officers and employees of Holdings,
(dg) the Borrower any Credit Party may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services refinance Indebtedness to the Borrower extent permitted by Section 6.1;
(h) so long as no Event of Default has occurred and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vestingis continuing, settlement or exercise of such Equity Interests or rights, and any Credit Party may issue common Equity Interests to settle rights make payments in respect of Equity Interests, and intercompany Indebtedness; and
(ei) the Borrower Holdings or any of its Subsidiaries may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the sum consisting of the amount such Restricted Junior Payment and the aggregate amount repurchase of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% Equity Interests deemed to occur upon any “cashless” exercise of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been deliveredstock options, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofwarrants or other convertible securities.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Bz Intermediate Holdings LLC), Credit and Guaranty Agreement (Boise Inc.)
Restricted Junior Payments. The Borrower will not, not and will not -------------------------- permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectlyindirectly declare, order, pay, make or set apart any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that sum for (a) any dividend or other distribution, direct or indirect, on account of any shares of any class of stock of the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, 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 the Borrower or any Subsidiary now or hereafter outstanding; or (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of stock of the Borrower or any Subsidiaries now or hereafter outstanding except:
(i) Subsidiaries may make, declare and pay dividends or and make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services their capital stock to the Borrower and or Wholly-Owned Subsidiaries of the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and Borrower;
(ii) the sum The Borrower may declare and pay dividends on any class of the amount such Restricted Junior Payment and the aggregate amount its capital stock payable solely in shares of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% common stock of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and ; and
(iii) The Borrower may make, declare and pay cash dividends with respect to its common stock as long as no Default exists or would result therefrom on either the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofdate such dividends are declared or paid.
Appears in 2 contracts
Samples: Credit Agreement (Imperial Financial Group Inc), Credit Agreement (Imperial Financial Group Inc)
Restricted Junior Payments. The Borrower will notNone of Holdings, and will not permit the Company or any Subsidiary to, of the Company's Subsidiaries shall declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that except:
(a) regularly scheduled cash dividends by Holdings on the Borrower Preferred Stock in an aggregate amount not to exceed $1,200,000 in any Fiscal Year; provided that in the event such dividends actually paid in any Fiscal Year are less than the maximum permitted to be paid during such Fiscal Year, the unpaid amount for such Fiscal Year may be carried over to the next succeeding Fiscal Year;
(b) regularly scheduled payments of principal and interest by Holdings on the Indebtedness evidenced by the Common Equity Notes issued to the holders of Common Stock either (i) pursuant to the Shareholders' Agreement or (ii) pursuant to the ESOP;
(c) cash dividends on the Capital Stock of the Company to Holdings paid and declared on or prior to the Closing Date to fund the transactions contemplated by the Acquisition Documents;
(d) cash dividends on the Capital Stock of the Company to Holdings paid and declared in any Subsidiary may declare Fiscal Year (A) to fund the payment of taxes and pay dividendsordinary operating expenses of Holdings, (B) to fund the payment of Transaction Costs of Holdings not in excess of $6,000,000 in the aggregate and make other distributions, with respect (C) to its Equity Interests payable solely in additional Equity Interestsfund payments permitted to be made by Holdings pursuant to clauses (a), (b) and (g) of this Section 9.06;
(e) cash dividends paid solely to a Borrower by any of such Borrower's Subsidiaries;
(f) regularly scheduled payments of interest and principal on the Permitted Subordinated Indebtedness but only to the extent permitted to be paid pursuant to the terms of such Permitted Subordinated Indebtedness; and
(g) after the first anniversary of the Closing Date, payments made by Holdings in respect of (A) redemptions of the Preferred Stock, (B) repurchases of the Nonvoting Common Stock (but only to the extent such Nonvoting Common Stock is subject to a put or call pursuant to the Nonvoting Common Stock Purchase Agreement), (C) repurchases of other Capital Stock of Holdings put to (or, in the case of Capital Stock subject to the Shareholders' Agreement and held by former employees of Holdings, the Borrowers or any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably Guarantor, called by) Holdings pursuant to the holders terms of such the Shareholders' Agreement or the ESOP and principal prepayments of any Common Equity InterestsNotes; provided, however, that the Restricted Junior Payments described in clauses (a), (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Yearb)(i), (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (eg) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, above shall not be permitted if either (iA) no a Default or an Event of Default shall have occurred and be continuing and at the date of declaration or payment thereof or would result therefrom or (iiB) the sum of the amount such Restricted Junior Payment is prohibited under the terms of any Indebtedness or Capital Stock of Holdings, the Company or any of the Company's Subsidiaries; and the aggregate amount of all prior Restricted Junior Payments made in reliance on this provided, further, that cash redemptions permitted under clause (eg) above shall not exceed 50% be limited to the excess, if any, of the Borrower’s average aggregate Consolidated Net Income for Revolving Credit Availability under all completed Fiscal Years for which Credit Facilities (plus, after the financial statements required by Section 5.01(b) shall have been deliveredinception of the Permitted Receivables Financing Program, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered average liquidity available to the Administrative Agent a certificate of Borrowers under the chief financial officer of Permitted Receivables Financing Program) during the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in thirty days immediately preceding the case of clause (ii), reasonably detailed calculations in support thereofdate set for such payment over $15,000,000.
Appears in 2 contracts
Samples: Loan Agreement (Muehlstein Holding Corp), Loan Agreement (Muehlstein Holding Corp)
Restricted Junior Payments. The Borrower will not, and will not permit Neither the Partnership nor any Subsidiary to, declare or make, or agree to pay or makeParent Guarantor shall, directly or indirectly, make or pay any Restricted Junior Payment, or incur Payment in any obligation (contingent or otherwise) to do so, except that fiscal year:
(a) in excess of the Borrower sum of (i) 95% of FFO of the Parent Guarantors, the Borrowers and their respective Subsidiaries and Joint Ventures (but only to the extent allocable to the Parent Guarantors or the Borrowers or their Wholly Owned Subsidiaries (based on economic share and not necessarily percentage ownership) in the case of consolidated non-Wholly Owned Subsidiaries and Joint Ventures) plus (ii) any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, realized gain resulting from Dispositions during such fiscal year;
(b) any Subsidiary may declare and pay dividends or make other distributions with respect to its acquire Equity Interests ratably to of the holders of such Equity InterestsParent, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) unless no Default or Event of Default exists;
(c) during any period while an Event of Default exists pursuant to Section 10.01(a); and
(d) during any period that any other material non-monetary Event of Default exists. Notwithstanding the foregoing, (i) the Partnership and the Parent Guarantors shall have occurred be permitted at all times to make Restricted Junior Payments required in order to enable the Parent or any REIT Subsidiary to continue to qualify as a REIT and be continuing to avoid entity level taxes and (ii) to the sum of the amount such extent constituting a Restricted Junior Payment Payment, the Partnership and the aggregate amount Parent Guarantors may make Investments not otherwise prohibited under the Loan Documents. For purposes of all prior clarity, the Partnership and the Parent Guarantors may make Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of to enable the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered Parent to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofmake Restricted Junior Payments permitted hereby.
Appears in 2 contracts
Samples: Credit Agreement (General Growth Properties, Inc.), Credit Agreement (General Growth Properties, Inc.)
Restricted Junior Payments. The Borrower will shall not, and will shall not permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; PROVIDED that so long as no Event of Default or Potential Event of Default has occurred and is continuing or would be caused thereby, Borrower may:
(i) repurchase shares of its capital stock or incur of any obligation corporate parent (contingent together with options or otherwisewarrants in respect of any thereof) to do soheld by present and former officers, except directors and employees of Borrower so long as such repurchase is pursuant to, and in accordance with the terms of, management and/or employee stock plans, stock subscription agreements or shareholder agreements;
(ii) repurchase, redeem, defease or otherwise prepay or retire Senior Subordinated Debt or Refinancing Sub Debt; PROVIDED that after giving effect thereto the Available Amount Usage shall not exceed the Available Amount;
(aiii) the purchase, redeem or otherwise acquire shares of common stock of Borrower or warrants or options to acquire any Subsidiary may declare such shares with proceeds received by Borrower from substantially concurrent equity contributions or issuances of new shares of its common stock;
(iv) redeem or exchange, in whole or in part, any capital stock of Borrower for shares of another class of capital stock of Borrower or rights to acquire shares of such other class of capital stock; PROVIDED that such other class of capital stock contains terms and pay dividendsprovisions (taken as a whole, and taking into account the relative amounts of the shares of each class of capital stock involved in such redemption or exchange) that are at least as advantageous to Lenders as those contained in the capital stock redeemed or exchanged therefor; and
(v) make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in ; PROVIDED that on the aggregate for date (the "DECLARATION DATE") of declaration of any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights dividend in respect of Equity InterestsBorrower's outstanding capital stock pursuant to the terms of this clause (v) or the making of any other Restricted Junior Payment pursuant to the terms of this clause (v), (X) the Consolidated Leverage Ratio as of the last day of the Fiscal Quarter most recently ended shall be less than 4.00:1.00 and (eY) the Borrower may make additional cash Restricted Junior Payments so long as at the time aggregate amount of and after giving effect to each any such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the sum of the amount such Restricted Junior Payment and when added to the aggregate amount of all prior Restricted Junior Payments made in reliance on previously declared or (without duplication) paid by Borrower pursuant to this clause (ev) shall during the period commencing on the Closing Date and ending on the Declaration Date, does not exceed 50% of the Borrower’s aggregate cumulative Consolidated Net Income of Borrower and its Subsidiaries for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, period commencing with on the Closing Date and ending on the last day of the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofQuarter most recently ended.
Appears in 2 contracts
Samples: Credit Agreement (Boyds Collection LTD), Credit Agreement (Boyds Collection LTD)
Restricted Junior Payments. The Borrower Credit Parties will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior PaymentPayment at any time; provided, or incur any obligation (contingent or otherwise) to do so, except that that: (a) the Borrower or any Credit Party that is a Subsidiary of another Credit Party may declare and pay dividends, and make other distributions, with respect dividends to its Equity Interests payable solely in additional Equity Interests, such Credit Party; (b) any Subsidiary may declare and pay dividends to Persons that own capital stock or make other distributions with equity interests in such Subsidiary, ratably according to their respective holdings of the type of capital stock or other equity interest in respect to its Equity Interests ratably to the holders of which such Equity Interests, dividend is being made; (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (i) the Credit Parties may pay Permitted Pre-IPO Dividends prior to the consummation of a Qualified IPO and (ii) the sum Credit Parties may pay Permitted Post-IPO Dividends following the consummation of a Qualified IPO; (d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Credit Parties may make Restricted Junior Payments in order to permit the Borrower to purchase capital stock or other equity interests of the amount Borrower from (x) present or former directors, officers or employees (or their transferees, estates or beneficiaries under their estates) upon the death, disability, resignation or termination of such Restricted Junior Payment and the director, officer or employee, in an aggregate amount of for all prior such Restricted Junior Payments made in reliance on this clause (ed)(x) shall not to exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) $5,000,000, for the period from the Closing Date up to (but excluding) the first anniversary of the Closing Date, and (ii) above$1,000,000, together withper year thereafter or (y) its equityholders, including the Lenders and their Controlled Investment Affiliates, in the case of an aggregate amount for all such Restricted Junior Payments made in reliance on this clause (d)(y) not to exceed (i) $15,000,000, for the period from the Closing Date up to (but excluding) the first anniversary of the Closing Date and (ii), reasonably detailed calculations ) $1,000,000 per year thereafter; and (e) the Credit Parties may make Restricted Junior Payments (in support thereofaddition to any Permitted Dividends) to Xxxxxx in an amount not to exceed $400,000 per fiscal year for services rendered.
Appears in 2 contracts
Samples: Credit and Security Agreement (Progenity, Inc.), Credit and Security Agreement (Progenity, Inc.)
Restricted Junior Payments. The Borrower No Loan Party will, nor will not, and will not it permit any Subsidiary to, declare or make, or agree to pay or makeof its Restricted Subsidiaries, directly or indirectly, to pay or make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that except:
(a) Restricted Junior Payments to Holdings and by Holdings or any Upper Tier Entity:
(i) so long as no Event of Default has occurred and is continuing, in an aggregate amount not to exceed in any Fiscal Year the sum of $3,000,000 (or $6,000,000 after a Qualified Public Offering), plus any amounts not used in the immediately preceding prior Fiscal Year, to the extent necessary to permit Holdings or any Upper Tier Entity to purchase Capital Stock or Capital Stock options (A) from present or former Officers, directors, consultants or employees (or the assigns, estate, heirs or current or former spouses thereof) of any Group Member or Upper Tier Entity upon the death, disability or termination of employment of such Officer, director, consultant or employee or (B) pursuant to any employee or director equity plan, employee or director stock option plan or any other employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of any Group Member or Upper Tier Entity; provided that cancellation of Indebtedness owing to any Group Member from members of management, directors, managers or consultants of any Group Member in connection with a repurchase of Capital Stock of Holdings will not be deemed to constitute a Restricted Junior Payment for purposes of this Section 7.4 or any other provision of this Agreement;
(ii) to pay Holdings’ or any Upper Tier Entity’s general administrative and comparable overhead costs and expenses, including legal and accounting fees and expenses of Holdings or any Upper Tier Entity in the ordinary course of business;
(iii) to pay any and all amounts payable under the Merger Agreement by Holdings, Borrower or any Subsidiary may declare Upper Tier Entity to the Sellers (each as defined in the Merger Agreement) after the Closing Date, including without limitation purchase price payments and pay dividendsamounts related to tax refunds;
(iv) for the payment when due by Holdings or any Upper Tier Entity of franchise Taxes and filing fees and other fees, Taxes and make expenses required to maintain its corporate existence; and
(v) for the payment by Holdings or any Upper Tier Entity of fees and expenses (other distributions, with respect than to its Equity Interests payable solely in additional Equity Interests, Affiliates) related to any equity or debt offering (whether or not successful) by a Group Member which is permitted by this Agreement;
(b) (x) dividends and distributions (i) by any Group Member that is a Loan Party to any Loan Party other than Holdings and (ii) by any Group Member that is not a Loan Party to any Group Member other than Holdings and (y) dividends and distributions by any Restricted Subsidiary may declare and pay dividends or make other distributions with respect of Borrower that is not a Loan Party to any holder of its Equity Interests ratably Capital Stock, to the extent made to all such holders of ratably according to their ownership interests in such Equity Interests, Capital Stock;
(c) the Borrower and its Subsidiaries may make Restricted Junior PaymentsPayments with the proceeds of Permitted Refinancing Indebtedness to the extent otherwise permitted hereunder or under the subordination provisions, not exceeding $100,000,000 in the aggregate for any Fiscal Yearif any, applicable thereto;
(d) the Borrower may redeem conversion or otherwise cancel Equity Interests exchange of any outstanding Permitted Subordinated Indebtedness, any other Indebtedness that is subordinated to, or rights secured on a junior Lien Basis with, the Obligations, and/or unsecured Indebtedness of any Group Member for Qualified Capital Stock, in respect thereof granted to directorseach case, officers, employees or other providers of services to in accordance with the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and terms thereof;
(e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have has occurred and be is continuing or would result therefrom, one or more Group Members may make Restricted Junior Payments not to exceed the greater of (x) $2,000,000 and (iiy) 10% of Consolidated EBITDA;
(f) subject to compliance with the sum applicable Available Amount Usage Conditions, one or more Group Members may make Restricted Junior Payments in an aggregate amount not to exceed the Available Amount as of the amount applicable date of such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereof.Payment;
Appears in 2 contracts
Samples: Credit Agreement (EngageSmart, LLC), Credit Agreement (EngageSmart, LLC)
Restricted Junior Payments. The Borrower will Holdings and Company shall not, and will with respect to clause (iv) of the definition of Restricted Junior Payment shall not permit any Subsidiary of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided that (a) in the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interestscase of clauses (i), (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interestsiii), (cvii) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (eviii) the Borrower may make additional cash Restricted Junior Payments below so long as at the time no Event of and after giving effect to each such Restricted Junior Payment, (i) no Default or Potential Event of Default shall have occurred and be continuing or would result therefrom):
(i) Company and its Subsidiaries may make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as such indenture or other agreement may be amended from time to time to the extent permitted under this Agreement;
(ii) any Subsidiary of Holdings may make Restricted Junior Payments to Holdings in an aggregate amount not in excess of $2,500,000 in any Fiscal Year (i) to fund any redemption or repurchase of Capital Stock that is required pursuant to the terms of any “qualified stock bonus plan” under Section 401(a) of the Internal Revenue Code that complies in all material respects with the applicable provisions of Sections 404, 409 and 415 of the Internal Revenue Code and (ii) to repurchase the sum Capital Stock of Holdings from directors, employees or members of management of Holdings or any Subsidiary (or their estate, family members, spouse and/or former spouse);
(iii) Company and its Subsidiaries may make any payment or prepayment of principal of, premium, if any, or interest on, or redeem, purchase, retire, defease (including in-substance or legal defeasance), create a sinking fund or make a similar payment with respect to, Subordinated Indebtedness of Company and its Subsidiaries with the proceeds of any refinancing Indebtedness of Company and its Subsidiaries permitted by subsection 7.1 so long as such refinancing Indebtedness is Subordinated Indebtedness of Company and its Subsidiaries and subordinated to at least the same extent as the Subordinated Indebtedness being refinanced;
(iv) Holdings and Company may declare and make dividend payments or other distributions payable solely in Specified Equity of such Person;
(v) any Subsidiary of Holdings may make Restricted Junior Payments to Holdings:
(a) the proceeds of which will be used to pay the tax liability for the relevant jurisdiction in respect of consolidated, combined, unitary or affiliated tax returns filed by Holdings (that include Company and or any of its Subsidiaries) to the extent such tax liability does not exceed the lesser of (a) the taxes that would have been payable by Company and its Subsidiaries as a stand-alone group to the extent that any such taxes are not paid or to be paid directly by Company or its Subsidiaries or (b) the actual tax liability of the Holdings consolidated, combined, unitary or affiliated group to the extent paid or to be paid by Holdings; and
(b) the proceeds of which shall be used by Holdings to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including, without limitation, administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $100,000 in any Fiscal Year plus any reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of Company and its Subsidiaries;
(vi) Holdings may make Restricted Junior Payments consisting of repurchases of Capital Stock of Holdings deemed to occur upon the non-cash exercise of stock options and warrants;
(vii) Company may make Restricted Junior Payments after the Closing Date equal to 50% of the Consolidated Net Income of Company and its Subsidiaries for the period (taken as one accounting period) commencing with the Fiscal Quarter ending September 30, 2007 and ending on the date of Holdings’ most recently ended Fiscal Quarter for which financial statements required to be delivered pursuant to subsections 6.1(ii) or (iii) are available at the time of such Restricted Junior Payment and Payment; provided that the aggregate amount of all prior such Restricted Junior Payments made in reliance on this clause (e) for any such Fiscal Year shall not exceed 50% of $2,000,000; and
(viii) Holdings and Company may make other Restricted Junior Payments after the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered Closing Date equal to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereof$7,500,000.
Appears in 2 contracts
Samples: Credit Agreement (IntraLinks Holdings, Inc.), Credit Agreement (IntraLinks Holdings, Inc.)
Restricted Junior Payments. The Borrower will not, and will not Directly or indirectly through any manner or means nor shall it permit any Subsidiary toof its Affiliates directly or indirectly through any manner or means, declare declare, order, pay, make or makeset apart, or agree to pay declare, order, pay, make or makeset apart, directly or indirectly, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that (a) any Subsidiary of the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders Borrower or any Wholly-Owned Subsidiary Guarantor; (b) the Borrower (i) may refinance the Senior Notes in accordance with Indebtedness incurred under Section 6.01(c), (ii) may make regularly scheduled payments of interest in respect of the Senior Notes and any Indebtedness permitted by Section 6.01(c) in accordance with the terms of, and only to the extent required by, the indenture governing such Equity Interestsnotes, and (iii) if the Leverage Ratio is less than or equal to 3.65:1.00, the Borrower may repurchase, repay, redeem, defease or retire Senior Notes or any outstanding Indebtedness permitted under Section 6.01(c) with the then Available Amount; (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) 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 (i) in an aggregate amount not to exceed $2,000,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses incurred in the ordinary course of business, (ii) the sum for so long as Holdings and its Subsidiaries are members of the amount same affiliated group of corporations within the meaning of Section 1504 of the Internal Revenue Code and the Treasury Regulations promulgated thereunder (and any similar provision of state or local income tax law) to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries as part of such an affiliated group of which Holdings is the common parent within the meaning of Section 1504 of the Internal Revenue Code, provided that such Restricted Junior Payment and 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 each case so long as Holdings applies the amount of all prior any such Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income Payment for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been deliveredsuch purpose, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (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 common stock options of Holdings from present or former officers or employees of Holdings or any of its Subsidiaries upon the death, disability or termination of employment of such officer or employee, and (iv) in an aggregate amount not to exceed $15,000,000, which Holdings may distribute to its shareholders or which the Borrower shall have delivered may use to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofmake other Restricted Junior Payments.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (RadNet, Inc.), Credit and Guaranty Agreement (RadNet, Inc.)
Restricted Junior Payments. The None of the GP, the Borrower will not, and will not permit or any Subsidiary to, will declare or pay or make, or agree to declare or pay or make, directly or indirectly, any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that that:
(a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, dividends with respect to its Equity Interests payable solely in additional Equity Interests (other than Disqualified Equity Interests, ) permitted hereunder;
(b) any Subsidiary may declare and pay dividends or make other distributions with respect to its capital stock, partnership or membership interests or other similar Equity Interests, and declare and make other Restricted Junior Payments in respect of its Equity Interests, in each case (other than in the case of any Restricted Junior Payment made solely in Equity Interests that are not Disqualified Equity Interests) ratably to the holders of such Equity InterestsInterests (or, if not ratably, on a basis more favorable to the Borrower and the Subsidiaries);
(c) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 cash distributions to owners of the common units representing limited partner Equity Interests in the aggregate Borrower with the Net Proceeds in respect of any substantially concurrent issuance or sale by the Borrower of its Equity Interests (other than (i) the MLP IPO, (ii) any issuance or sale of Equity Interests to any Subsidiary or (iii) any issuance or sale of Equity Interests to directors, officers or employees of the Borrower or any Subsidiary under any employee stock option or stock purchase plan or a similar benefit plan or to a trust established for the benefit of directors, officers or employees of the Borrower or any Fiscal Year, Subsidiary);
(d) the Borrower may redeem or otherwise cancel make repurchases of its Equity Interests or deemed to occur upon the “cashless exercise” of stock options, stock purchase rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of stock exchange rights if such Equity Interests represent a portion of the exercise price of such options or rightsrights or withholding taxes due upon such exercise, and may issue common Equity Interests to settle rights in respect of Equity Interests, and purchase or exchange;
(e) the Borrower may make additional cash payments in lieu of the issuance of fractional units representing insignificant interests in the Borrower in connection with the exercise of warrants, options or other Securities convertible into or exchangeable for limited partner Equity Interests in the Borrower, provided that any such cash payment shall not be for the purpose of evading the limitations set forth in this Section 6.4;
(f) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may make Restricted Junior Payments, pursuant to and in accordance with stock option plans or other benefit plans or agreements for current or former directors, officers or employees of the Borrower and the Subsidiaries, provided that the aggregate amount of such Restricted Junior Payments shall not exceed $2,500,000 in any Fiscal Year (with any unused amount in any Fiscal Year being permitted to be carried over to the succeeding Fiscal Year (but not to any other Fiscal Year), so that the aggregate amount that may be expended in any Fiscal Year, including any carry-over, may not exceed $5.000.000);
(g) the Borrower and the Guarantor Subsidiaries may make regularly scheduled interest and principal payments as and when due in respect of any Junior Indebtedness, other than payments in respect of Subordinated Indebtedness prohibited by the subordination provisions thereof;
(h) the Borrower and the Guarantor Subsidiaries may refinance Junior Indebtedness with the proceeds of other Indebtedness permitted under Section 6.1;
(i) the Borrower and the Guarantor Subsidiaries may make payments of or in respect of Junior Indebtedness made solely with Equity Interests (other than Disqualified Equity Interests) in the Borrower;
(j) so long as at the time of and after giving effect to each such Restricted Junior Paymentdistribution is made, (i) no Default or Event of Default shall have occurred and be continuing and or would result therefrom, (ii) after giving pro forma effect thereto, the sum Interest Coverage Ratio as of the amount such Restricted Junior Payment and last day of the aggregate amount of all Fiscal Quarter most recently ended prior Restricted Junior Payments made in reliance on this clause (e) thereto shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period be less than 2.00 to 1.00 and (iii) the common units representing limited partner Equity Interests in the Borrower are listed on a national securities exchange (as defined in the Exchange Act), the Borrower may make, after the end of any Fiscal Quarter, cash distributions on a pro rata basis to owners of the common units representing limited partner Equity Interests in the Borrower pursuant to and in accordance with the cash distribution policy adopted by the board of directors of the GP pursuant to the Partnership Agreement and in effect on the date thereof (provided that such policy shall not be more adverse to the Lenders than the cash distribution policy described in Schedule 6.4(j));
(k) so long as no Default or Event of Default shall have delivered occurred and be continuing, the GP, the Borrower and the Subsidiaries may make other Restricted Junior Payments in cash in an aggregate amount for all such Restricted Junior Payments taken together not to exceed $10,000,000 since the Administrative Agent a certificate Drop Down Date; and
(l) on the Drop Down Date, the Borrower may make Restricted Junior Payments with the Net Proceeds of the chief financial officer MLP IPO as contemplated by Section 11 of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofAlon USA Energy Credit Agreement.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Alon USA Energy, Inc.), Credit and Guaranty Agreement (Alon USA Partners, LP)
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries or Affiliates through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that that:
(a) the Borrower or any Any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary of Company may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, Company or any Credit Party that is a Wholly-Owned Guarantor Subsidiary;
(cb) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) 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 in an aggregate amount not to exceed $250,000 in any trailing twelve month period, solely to the extent necessary to permit Holdings to pay general administrative costs and expenses that are attributed directly to or reasonably allocated to Company and its Subsidiaries, and in each case only so long as Holdings promptly (iiand in any event, within one (1) the sum of Business Day) applies the amount of any such Restricted Junior Payment for such purpose;
(c) so long as no Event of Default exists or would result therefrom, any Credit Party may redeem, acquire, retire, repurchase or settle its Capital Stock held by former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of such Credit Party, in each case upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any equity incentive plan or any other employment inventive agreements, in an aggregate amount of for all prior such Restricted Junior Payments made not to exceed $500,000 in reliance on this clause any fiscal year;
(d) Holdings may declare and make dividend payments or other distributions payable solely in its Capital Stock; and
(e) shall So long as no Default or Event of Default exists or would exist in the future, Holdings may make other Restricted Junior Payments in the form of stock buybacks in an amount not to exceed 50% the Retained Excess Cash Flow Amount (and Subsidiaries of Holdings may make Restricted Payments to Holdings to fund the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by foregoing amount). Notwithstanding anything in this Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered 6.5 to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) abovecontrary, together no amount shall be permitted to be distributed by any Credit Party to pay, or otherwise in connection with, in any Tax resulting from the case cancellation or discharge of clause (ii), reasonably detailed calculations in support thereofIndebtedness.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (ONE Group Hospitality, Inc.), Credit and Guaranty Agreement (ONE Group Hospitality, Inc.)
Restricted Junior Payments. The Neither the Borrower nor any Restricted Subsidiary will not, and will not permit any Subsidiary to, declare or pay or make, or agree to declare or pay or make, directly or indirectly, any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Restricted Subsidiary may declare and pay dividends or make other distributions with respect to its capital stock, partnership or membership interests or other similar Equity Interests Interests, and declare and make other Restricted Junior Payments in respect of its Equity Interests, in each case ratably to the holders of such Equity InterestsInterests (or, if not ratably, on a basis more favorable to the Borrower and the Restricted Subsidiaries), or make payments on Indebtedness to the extent authorized by the Approved Budget, (b) Holdings may make payments to BEN under the Shared Services Agreement so long as such payments are (i) consistent with prior business practices, except made on a monthly basis rather than quarterly, (ii) made in the ordinary course of business and (ii) in accordance with the Approved Budget and (c) the Borrower and its the Restricted Subsidiaries may make Restricted Junior Paymentsrepay Indebtedness (i) permitted under Sections 6.1(b) and (g) in connection with the DLP VII Transaction and as contemplated under Section 5.17 and Exhibit I, not exceeding $100,000,000 (ii) permitted under Section 6.1(h) in a manner that is (x) in the aggregate for any Fiscal Yearordinary course of business, (dy) in accordance with the Borrower may redeem or otherwise cancel Equity Interests or rights Cash Management Order and (z) in respect thereof granted accordance with the Approved Budget, (iii) under the DLP IV Credit Agreement pursuant to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights Sections 4.1(b) (but not in respect of Equity Interests, sales of more than 5% of the portfolio of life settlement policies held by DLP IV as of the Closing Date unless the Net Proceeds of such sale would be sufficient to repay in full all Obligations under this Agreement) and 5.2 of the DLP IV Credit Agreement and (eiv) under the DLP VI Credit Agreement pursuant to Section 2.4(b) of the DLP VI Credit Agreement. Notwithstanding anything to the contrary contained in this Agreement, any other Credit Document or any motion with the Bankruptcy Court, without a court order, neither the Borrower may nor any Restricted Subsidiary will make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the sum of the amount such any Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken to any Person except as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with expressly permitted under clauses (ia) and (iib) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereof.
Appears in 2 contracts
Samples: Superpriority Secured Debtor in Possession Credit and Guaranty Agreement (GWG Holdings, Inc.), Superpriority Secured Debtor in Possession Credit and Guaranty Agreement (GWG Holdings, Inc.)
Restricted Junior Payments. The Neither the Borrower nor any Restricted Subsidiary will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that that:
(a) the Borrower or and any Restricted Subsidiary may declare and pay dividends, and make dividends or other distributions, distributions with respect to its Equity Interests payable solely in additional Equity Interests, Interests in such Person permitted hereunder;
(b) any Restricted Subsidiary may declare and pay dividends or make other distributions with respect to its capital stock, and declare and make other Restricted Junior Payments in respect of its Equity Interests Interests, in each case ratably to the holders of such Equity InterestsInterests (or, if not ratably, on a basis more favorable to the Borrower and the Restricted Subsidiaries);
(c) the Borrower and its Subsidiaries may make Restricted Junior Paymentspayments in respect of, not exceeding $100,000,000 in or repurchases of its Equity Interests deemed to occur upon the aggregate for any Fiscal Year“cashless exercise” of stock options, stock purchase rights, stock exchange rights or other equity-based awards if such payment or Equity Interests represents a portion of the exercise price of such options or rights or withholding taxes, payroll taxes or other similar taxes due upon such exercise, purchase or exchange;
(d) the Borrower and any other Restricted Subsidiary may redeem make (and may make Restricted Junior Payments to Holdings to enable Holdings (or otherwise cancel any direct or indirect parent thereof) to make) cash payments in lieu of the issuance of fractional shares representing insignificant interests in such Person in connection with any dividend, split or combination of its Equity Interests or rights any Acquisition or in respect thereof granted to directorsconnection with the exercise of warrants, officers, employees options or other providers Securities convertible into or exchangeable for Equity Interests in such Person;
(e) each Restricted Subsidiary (other than the Borrower) may repurchase its Equity Interests owned by any of services to its minority owners upon a direct or indirect Disposition of such Restricted Subsidiary or of all or substantially all of such Restricted Subsidiary’s assets, provided that such Disposition is permitted under this Agreement;
(f) the Borrower and the Subsidiaries each other Restricted Subsidiary may make any other Restricted Junior Payment in an amount required not to satisfy tax withholding obligations related exceed the Net Proceeds of any Designated Equity Issuance (other than any such proceeds that are otherwise relied upon under this clause with respect to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash any other Restricted Junior Payments so long as at Payment or are relied upon under Section 6.6(w)) made after the Closing Date but not more than 90 days prior to the time of and after giving effect to each such Restricted Junior Payment, (i) so long as, with respect to any such Restricted Junior Payment, no Default or Event of Default under Section 8.1(a), 8.1(f) or 8.1(g) shall have occurred and be continuing and (ii) the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereof.or would result therefrom;
Appears in 2 contracts
Samples: Abl Credit and Guaranty Agreement (QualTek Services Inc.), Term Credit and Guaranty Agreement (QualTek Services Inc.)
Restricted Junior Payments. The Neither the Borrower nor any Restricted Subsidiary will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that that:
(a) the Borrower or and any Restricted Subsidiary may declare and pay dividends, and make dividends or other distributions, distributions with respect to its Equity Interests payable solely in additional Equity Interests, Interests in such Person permitted hereunder;
(b) any Restricted Subsidiary may declare and pay dividends or make other distributions with respect to its capital stock, and declare and make other Restricted Junior Payments in respect of its Equity Interests Interests, in each case ratably to the holders of such Equity InterestsInterests (or, if not ratably, on a basis more favorable to the Borrower and the Restricted Subsidiaries);
(c) the Borrower and its Subsidiaries may make Restricted Junior Paymentspayments in respect of, not exceeding $100,000,000 in or repurchases of its Equity Interests deemed to occur upon the aggregate for any Fiscal Year“cashless exercise” of, stock options, stock purchase rights, stock exchange rights or other equity-based awards if such payment or Equity Interests represents a portion of the exercise price of such options or rights or withholding taxes, payroll taxes or other similar taxes due upon such exercise, purchase or exchange;
(d) the Borrower may redeem or otherwise cancel make cash payments in lieu of the issuance of fractional shares representing Equity Interests or rights in respect thereof granted to directorsthe Borrower in connection with the exercise of warrants, officers, employees options or other providers of services to Securities convertible into or exchangeable for common stock in the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and Borrower;
(e) the Borrower may make additional cash Restricted Junior Payments so long as at in respect of its Equity Interests pursuant to and in accordance with stock option plans or other benefit plans or agreements for directors, officers or employees of the time Borrower and the Subsidiaries; provided that the amount of and after giving effect to each any such Restricted Junior PaymentPayments, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the sum of the amount such Restricted Junior Payment and together with the aggregate amount of all prior other Restricted Junior Payments made in reliance on this clause (e) during the same Fiscal Year, shall not exceed 50the sum of (i) the greater of (x) $10,000,000 and (y) 0.50% of Consolidated Total Assets as of the last day of the then most recently ended Test Period, plus (ii) any unutilized portion of such amount in any preceding Fiscal Year ended after the Closing Date;
(f) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may repurchase common stock in the Borrower’s , provided that the aggregate Consolidated Net Income for amount of such repurchases shall not exceed the quotient obtained by dividing (i) the aggregate principal amount of all completed Fiscal Years for which prepayments of the financial statements required Tranche B Term Loans (as defined in the Term Credit Agreement) (other than any prepayments pursuant to Section 2.14 of the Term Credit Agreement or in connection with any other refinancing of any Tranche B Term Loans (including on account of incurrence of any Permitted Term Indebtedness)) by Section 5.01(b(ii) three; and provided further that (A) at the time each such Restricted Junior Payment is made the Specified Payment RP Conditions shall have been delivered, commencing be satisfied with the Fiscal Year ending December 31, 2012, taken as a single accounting period respect thereto and (iiiB) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer a Financial Officer of the Borrower certifying that all the requirements of the Specified Payment RP Conditions have been satisfied with respect thereto and including reasonably detailed calculations demonstrating compliance satisfaction of such requirements;
(g) to the extent constituting Restricted Junior Payments of the type referred to in clause (a) or (b) of the definition of such term, the Borrower and the Restricted Subsidiaries may consummate the transactions permitted by Section 6.6 (other than in reliance on Section 6.6(r)) and Section 6.8 (other than in reliance on Section 6.8(b)(i)(D)) (it being understood that this clause (g) may be relied on to consummate any transaction that is technically subject to this Section 6.4 but is intended to be restricted primarily by any such other Section, but may not be relied on to consummate any transaction that is intended to be restricted primarily by this Section 6.4);
(h) the Borrower and the Restricted Subsidiaries may make regularly scheduled interest and principal payments as and when due in respect of any Junior Indebtedness (including any “AHYDO catch-up payment” with clauses respect to, and required by the terms of, any indebtedness of the Borrower or any Restricted Subsidiary), other than payments in respect of Subordinated Indebtedness prohibited by the subordination provisions thereof;
(i) the Borrower and the Restricted Subsidiaries may refinance Junior Indebtedness with the proceeds of other Indebtedness to the extent permitted under Section 6.1;
(j) the Borrower and the Restricted Subsidiaries may make payments of or in respect of Junior Indebtedness made solely with Equity Interests in the Borrower (other than Disqualified Equity Interests);
(k) the Borrower and the Restricted Subsidiaries may make additional Restricted Junior Payments in respect of working capital adjustments or purchase price adjustments made pursuant to the Life Sciences Sale Agreement (as in effect on the Closing Date); and
(l) the Borrower and the Restricted Subsidiaries may make additional Restricted Junior Payments, provided that (i) at the time each such Restricted Junior Payment is made the Specified Payment RP Conditions shall be satisfied with respect thereto and (ii) above, together with, in the case Borrower shall have delivered to the Administrative Agent a certificate of clause (ii), a Financial Officer of the Borrower certifying that all the requirements of the Specified Payment RP Conditions have been satisfied with respect thereto and including reasonably detailed calculations demonstrating satisfaction of such requirements. Notwithstanding anything to the contrary in support thereofthis Section 6.4, neither the Borrower nor any Restricted Subsidiary shall make any Restricted Junior Payment with the net cash proceeds of the Specified Disposition, except any Restricted Junior Payment permitted by Section 6.4(b).
Appears in 2 contracts
Samples: Abl Credit and Guaranty Agreement (Entegris Inc), Abl Credit and Guaranty Agreement (Entegris Inc)
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary of Holdings may declare and pay dividends or make other distributions with respect ratably to its Equity Interests ratably equity holders (provided that no Credit Party or any of its Subsidiaries may declare and pay dividends pursuant to this Section 6.4(a) to any Person that is not a Credit Party), (b) any Subsidiary of Holdings may make Restricted Junior Payments to Holdings or to Tronox LLC to the holders extent necessary to permit Holdings or Tronox LLC (i) to pay general administrative costs and expenses, legal and accounting fees and other general corporate and overhead expenses incurred by Holdings or Tronox LLC in the ordinary course of business, (ii) pay franchise taxes and other Tax obligations or fees required in each case to maintain its corporate existence, (iii) pay Taxes which are due and payable by Holdings as part of a consolidated group or due to ownership of any interests in Subsidiaries that are not treated as corporations for applicable Tax purposes, in each case, to the extent such Equity InterestsTaxes are attributable to Holdings and Subsidiaries of Holdings, (iv) pay auditing fees and expenses, (v) pay directors fees, expenses and indemnities owing to directors of Holdings and (vi) pay fees and expenses incurred in connection with an initial public offering; provided however that other than due to applicable law or regulation prohibiting the payment by one or more Subsidiaries of their proportionate share of Holdings’ liabilities noted in this Section 6.4(b) (or if any such payment would render one or more Subsidiaries insolvent or reasonably likely to become insolvent), each Subsidiary of Holdings may not pay more than its proportionate share of Holdings’ liabilities noted in this Section 6.4(b)), (c) the Borrower and its Subsidiaries Holdings or any Subsidiary may make Restricted Junior Paymentsregularly scheduled payments of interest in respect of the Permitted Seller Notes and the Permitted Unsecured Notes in accordance with the terms of, not exceeding $100,000,000 in and only to the aggregate for any Fiscal Yearextent required by, the agreement pursuant to which such Permitted Seller Note or Permitted Unsecured Note, as the case may be, was issued, (d) Holdings or any Subsidiary may make payments of principal and interest in respect of the Borrower extensions of credit made under the Revolving Credit Agreement and any Alternative Facility in accordance with the terms thereof, (e) US Holdings may redeem make payments in connection with the repurchase of the Tronox Exchangeable Election Shares in an amount equal to the per share purchase price set forth in the Transaction Agreement (without giving effect to any amendments thereto that are prohibited hereunder) so long as no Event of Default is then continuing or otherwise cancel Equity Interests would result therefrom, but in no event shall the Restricted Junior Payments made pursuant to this Section 6.4(e) exceed the difference between the Merger Consideration Amount and the actual Merger Consideration Payment, (f) (i) any Restricted Junior Payments made in connection with the Reorganization to Exxaro Sellers and their Affiliates or rights Holdings and its Subsidiaries that are referenced in the Transaction Summary and permitted under Section 6.15 but not to exceed the amounts set forth in the Transaction Summary in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (eii) the Borrower may make additional cash Restricted Junior Payments non-Cash distributions in connection with the Acquisition to Exxaro Sellers and their Affiliates in accordance with the Transaction Agreement, (g) so long as at the time of both before and immediately after giving effect to each 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 2.25:1.00 and no Event of Default has occurred and is continuing or would result therefrom, Holdings may make Restricted Junior Payments in an amount not in excess of the Available Amount, (h) so long as (I) 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 2.25:1.00, (II) no Event of Default has occurred and is continuing or would result therefrom and (III) such Restricted Junior Payments are made on or prior to the date that is 18 months after the Closing Date, dividends to the shareholders of Holdings may be made from the proceeds of Permitted Unsecured Notes in an amount not in excess of $350,000,000 (it being understood and agreed that up to $150,000,000 of such Restricted Junior Payments may be made from Cash and Cash Equivalents on the balance sheet of Holdings and its Subsidiaries in lieu of the proceeds of Permitted Unsecured Notes), (i) from and after the Acquisition Date, so long as (I) 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 2.25:1.00, (II) no Default or Event of Default shall have has occurred and be is continuing or would result therefrom and (iiIII) the sum of the amount such Restricted Junior Payment Payments are made on or prior to the date that is 18 months after the Closing Date, dividends to the shareholders of Holdings may be made solely from the proceeds of Permitted Unsecured Notes in an amount not in excess of $500,000,000 and (j) to the aggregate amount extent that both before and immediately after giving effect to such Restricted Junior Payment, Holdings is in compliance with Section 6.7 hereof and no Event of all prior Default has occurred and is continuing or would result therefrom, Holdings may make additional Restricted Junior Payments made in reliance on an amount not in excess of $150,000,000 during the term of this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofAgreement.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Tronox LTD), Credit and Guaranty Agreement (Tronox LTD)
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries or Affiliates through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that (a) U.S. Borrower may make required payments of principal, regularly scheduled payments of interest, fees and any other amount due in respect of Second Lien Term Loans and U.S. Borrower may make regularly scheduled payments of interest and fees due in respect of the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, Permitted Subordinated Debt; (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrowers and U.S. Holdings may make Restricted Junior Payments to Holdings (i) in an aggregate amount not to exceed $1,000,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses and (ii) to the sum extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose, (c) Borrowers and the aggregate amount of all prior U.S. Holdings may pay, or make Restricted Junior Payments made in reliance to Holdings to allow it to pay, management fees to Sponsor or its Affiliates not exceeding an aggregate amount per annum of $2,000,000 per Fiscal Year; provided that such payments shall be subordinated to the Obligations on terms satisfactory to Administrative Agent, and that upon the occurrence of a Default or an Event of Default and during the continuance thereof, no payment of any management fees or similar distributions to the Sponsor or any of its Affiliates shall be permitted under this clause Section 6.4(c), (d) Borrower and U.S. Holdings may make Restricted Junior Payments consisting of the cashless exercise of options and warrants of the Equity Interests of Holdings or any of its Subsidiaries and (e) shall not exceed 50% so long as no Default or Event of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) Default shall have been deliveredoccurred and be continuing or shall be caused thereby, commencing with the Fiscal Year ending December 31Credit Parties may declare and pay dividends or make other distributions to purchase or redeem Equity Interests of Holdings, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereof.AZ Chem Investments Partners LP or AZ Chem Luxembourg Finance
Appears in 2 contracts
Samples: First Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.), First Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.)
Restricted Junior Payments. The Neither Borrower will notshall, and will not nor shall either Borrower permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that except:
(a) the dividends or distributions to a Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, Wholly-Owned Subsidiaries;
(b) dividends on the Capital Stock of the U.S. Borrower declared during any Subsidiary fiscal quarter of the U.S. Borrower; provided that (i) only one such dividend may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to be declared during any such fiscal quarter, (ii) any such dividend declared during any such fiscal quarter must be paid within one (1) year after the holders date of declaration, (iii) the amount of such Equity Interestsdividend declared may not exceed the lesser of (A) the amount of the retained earnings of the U.S. Borrower as of the last day of the immediately preceding fiscal quarter and (B) thirty percent (30%) of the Net Income for the immediately preceding fiscal quarter, (civ) no such dividend may be declared or paid during any fiscal quarter unless (A) the Borrower Fixed Charge Coverage Ratio for the twelve-month period ending as of the last day of the immediately preceding fiscal quarter is no less than 1.30 to 1.00 and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (dB) the Borrower may redeem or otherwise cancel Equity Interests or rights Agent has received the certified reports described in respect thereof granted to directorsSection 8.01(a) confirming that, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Paymentdividend, the condition described in the foregoing clause (iA) no Default or Event of Default shall have occurred and be continuing and has been met;
(iic) the sum redemption of the amount AMCY Preferred Stock provided that such Restricted Junior Payment and redemption occurs within sixty (60) days after the Effective Date;
(d) dividends on the AMCY Preferred Stock in the event the same is not redeemed as permitted in Section 10.05(c);
(e) redemption of the Preferred Stock from proceeds of an initial public offering of Capital Stock of the U.S. Borrower;
(f) scheduled interest payments in respect of the Subordinated Debt when required to be made under the Subordinated Debt Documents but subject to the subordination provisions relating thereto in the Subordinated Debt Documents;
(g) payments in respect of Funded Debt which is permitted under Section 10.01; and
(h) repurchase of Capital Stock of the U.S. Borrower (including options, warrants or other rights to acquire such Capital Stock) from departing or deceased directors, officers or employees of the U.S. Borrower or its Subsidiaries pursuant to the terms of a Benefit Plan or employee agreement; provided that the aggregate amount of all prior such repurchases in any Fiscal Year shall not exceed $1,500,000; and provided further that in the event such repurchases aggregate less than $1,500,000 in any Fiscal Year, such repurchases permitted in the next succeeding Fiscal Year may aggregate $1,500,000 plus the amount of such deficiency for the preceding Fiscal Year up to a maximum of $1,000,000 provided, however, the Restricted Junior Payments made described in reliance on this clause clauses (a) through (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered), commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (ig) and (iih) above, together with, in above shall not be permitted after the case occurrence and during the continuance of clause (ii), reasonably detailed calculations in support thereofan Event of Default or a Potential Event of Default or if an Event of Default or a Potential Event of Default would result therefrom.
Appears in 2 contracts
Samples: Credit Agreement (Freedom Chemical Co), Credit Agreement (Freedom Chemical Co)
Restricted Junior Payments. The Borrower will Loan Parties shall not, and will shall not permit any Subsidiary of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make, give or publish notice or fix a date in respect of or set apart any sum for any Restricted Junior Payment, enter into an agreement or incur make any obligation commitment to effect any of the foregoing or take any other similar action in furtherance of or otherwise in connection with the foregoing; PROVIDED, HOWEVER, that, so long as no Event of Default or Potential Event of Default has occurred or is continuing, the Loan Parties may make any of the following payments:
(contingent i) commencing on January 1, 2000, the Loan Parties may make Restricted Junior Payments in respect of equity Securities, including payments in respect of limited partner interests in the Borrower that shall not be beneficially owned by CapStar or otherwise) to do so, except that CapStar Sub); PROVIDED that
(a) the Borrower aggregate amount of Restricted Junior Payments pursuant to this clause (i) during any calendar year shall not exceed an amount equal to 25% of Consolidated Net Income for the immediately preceding calendar year and (b) no payments of principal, or any Subsidiary redemption, purchase or defeasance, of any Indebtedness of CapStar and its Subsidiaries shall be permitted pursuant to this clause (i);
(ii) the Atlanta Airport Sub may declare make distributions to its partners in accordance with the Atlanta Partnership Agreement; PROVIDED that such distributions are made (x) pursuant to Section 5.1, 5.2 or 13.2 of the Atlanta Partnership Agreement in accordance with the provisions thereof in effect on the date of this Agreement and pay dividends, and make other distributions, (y) with respect to its Equity Interests payable solely Cash Flow from Operations and Capital Proceeds (in additional Equity Interests, each case as defined in the Atlanta Partnership Agreement on the date of this Agreement); and
(b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (ciii) the Borrower and its Subsidiaries Loan Parties may make Restricted Junior Payments, Payments in an aggregate amount (measured on a cumulative basis from the Closing Date) not exceeding to exceed $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services 25,000,000 pursuant to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vestingconversion, settlement exercise or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the sum redemption of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofPreferred Limited Partner Interests.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (Capstar Hotel Co), Senior Subordinated Credit Agreement (Capstar Hotel Co)
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries or Affiliates through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that that:
(a) (i) each Credit Party may make (A) regularly scheduled payments of principal, interest and fees as provided in the Borrower or any Subsidiary may declare Senior Secured Notes Indenture and pay dividends, the $125,000,000 Unsecured Debt Agreement as in effect on the date hereof and make other distributions, with respect to its Equity Interests payable solely in additional Equity Intereststhe Second Lien Documents (if any) and Subordinated Lien Documents (if any), (bB) any Subsidiary may declare voluntary prepayments of principal, interest, premium and pay dividends or make other distributions with respect to its Equity Interests ratably to fees on the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower Senior Secured Notes and the Subsidiaries in an amount required to satisfy tax withholding obligations related to $125,000,000 Unsecured Debt Agreement and any scheduled cash pay of the vesting, settlement or exercise of such Equity Interests or rights, Second Lien Obligations (if any) and may issue common Equity Interests to settle rights in respect of Equity Interests, and the Subordinated Lien Obligations (eif any) after the Borrower may make additional cash Restricted Junior Payments Closing Date so long as at the time of such payment and after giving effect thereto, the Fixed Charge Coverage Ratio is greater than 1.10 to 1.00 and Excess Availability is at least $20,000,000 at the time of and after giving effect to each such Restricted Junior Paymentpayment (for purposes of this clause, Excess Availability shall include cash in one or more deposit accounts subject to Agent’s first priority perfected security interests in excess of $10,000,000 in the aggregate), (iC) mandatory prepayments of principal on the Senior Secured Notes arising from dispositions of, or receipt of the insurance/condemnation proceeds in respect of, Notes Priority Collateral, and (D) payments of expenses, indemnities and other amounts (other than principal, interest or fees which are governed by clauses (A) through (D) above) required by the terms of the Senior Secured Notes Documents, and (ii) the holders of the Capital Stock of Holdings may purchase and sell Senior Secured Notes and/or $125,000,000 Unsecured Debt held by them from time to time in accordance with the terms of the Senior Secured Notes Indenture and the $125,000,000 Unsecured Agreement, as the case may be;
(b) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Euramax may make Restricted Junior Payments to Holdings (i) to the extent necessary to permit Holdings to pay general administrative costs and expenses (including directors’ fees and expenses), franchise taxes and other fees reasonably necessary to maintain its corporate existence in an aggregate amount not to exceed $1,500,000 during any Fiscal Year and (ii) to pay expenses associated with the sum Permitted Restructuring and the other Transactions not to exceed $15,000,000 in the aggregate;
(c) any Subsidiary of Euramax may pay dividends or make other distributions with respect to any class of its issued and outstanding Capital Stock to Euramax or any other Subsidiary of Euramax or intercompany Indebtedness permitted by Section 6.1(b);
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Euramax may make Restricted Junior Payments to permit Holdings to purchase its Capital Stock for Cash from present or former officers and employees of Holdings or any of its Subsidiaries in accordance with the terms of its stock option plans upon the death, disability or termination of employment of such officer or employee in aggregate amount not to exceed $2,500,000 in any Fiscal Year and may make distributions to Holdings to fund such payments subject to the provisions of this clause (d);
(e) Holdings may pay dividends to its shareholders so long as at the time of such payment and after giving effect thereto, the Fixed Charge Coverage Ratio is greater than 1.10 to 1.00 (including the cash dividend amount to be paid as a Fixed Charge for such calculation) and Excess Availability is at least $20,000,000 at the time of and after giving effect to such payment (for purposes of this clause, Excess Availability shall include cash in one or more deposit accounts subject to Agent’s first priority perfected security interests in excess of $10,000,000 in the aggregate);
(f) payments, dividends or distributions by Euramax and the Subsidiaries of Euramax to Holdings to enable Holdings to pay the amount of its actual federal, state or local Taxes to the extent such Taxes are attributable to the income or operations of Euramax or such Subsidiaries of Euramax, as applicable, may be made;
(g) payments in respect of Subordinated Indebtedness incurred after the date hereof but only to the extent that such payments are permitted pursuant to a subordination agreement in favor of Agent in form and substance to Agent in all respects may be made;
(h) payments, repayment, defeasance, redemption, retirement of (A) Indebtedness contractually subordinated to the Loans, and (B) any Subordinated Indebtedness of Euramax or any other Credit Party, or (C) any Indebtedness of Euramax or any other Credit Party that is unsecured, in each case in exchange for, or out of the amount net cash proceeds from, an incurrence of Permitted Refinancing Indebtedness;
(i) any Restricted Junior Payments made or deemed made in connection with the Permitted Restructuring;
(j) the making of any Restricted Junior Payment in exchange for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of Euramax or any direct or indirect parent of Euramax (other than any Capital Stock sold to a Subsidiary of Euramax or to an employee stock ownership plan or any trust established by Euramax) or from substantially concurrent contributions to the equity capital of Euramax, provided that, in each case, (i) such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% be made more than 30 days after the date of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been deliveredapplicable sale or contribution, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) aboveExcess Availability is at least $20,000,000 at the time of and after giving effect to such sale or contribution (for purposes of this clause, together with, Excess Availability shall include cash in one or more deposit accounts subject to Agent’s first priority perfected security interests in excess of $10,000,000 in the case of clause aggregate) (iicollectively, including any such contributions, “Refunding Capital Stock”), reasonably detailed calculations in support thereof.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit and Guaranty Agreement (Euramax International, Inc.), Senior Secured Revolving Credit and Guaranty Agreement (Euramax International, Inc.)
Restricted Junior Payments. The Borrower will shall not, and will shall not permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; provided, however, that:
(i) Borrower may make Restricted Junior Payments to redeem shares of its capital stock or incur warrants or options to acquire any obligation (contingent or otherwise) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders such shares from employees of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in upon the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees death or other providers termination of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise employment of such Equity Interests or rightsemployees, and may issue common Equity Interests to settle rights in respect provided that all of Equity Interests, and the following conditions are satisfied:
(e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (ia) no Potential Event of Default or Event of Default shall have occurred and be continuing and or would arise as a result of such Restricted Junior Payment;
(iib) the sum of the amount after giving effect to such Restricted Junior Payment and (together with all prior or concurrent Restricted Junior Payments permitted under this subsection 7.5(i)(b)), Borrower shall be in compliance on a pro forma basis with the covenants set forth in subsection 7.6, recomputed for the most recent month for which financial statements have been delivered by Borrower pursuant to subsection 6.1; and
(c) the aggregate amount of all prior such Restricted Junior Payments made permitted in reliance on this clause (e) any Fiscal Year of Borrower shall not exceed 50% $1,500,000;
(ii) Borrower may make regularly scheduled payments of interest in respect of the Borrower’s aggregate Consolidated Net Income Senior Subordinated Notes, in accordance with the terms of and to the extent required by, and subject to the subordination provisions contained in, the Subordinated Note Indenture; provided that (a) no Potential Event of Default or Event of Default shall have occurred and be continuing or would arise as a result of such Restricted Junior Payment, and (b) after giving effect to such Restricted Junior Payment (together with all prior or concurrent Restricted Junior Payments permitted under this subsection 7.5(ii)), Borrower shall be in compliance on a pro forma basis with the covenants set forth in subsection 7.6, recomputed for all completed Fiscal Years the most recent month for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and delivered by Borrower pursuant to subsection 6.1; and
(iii) Borrower may make Restricted Junior Payments during the Borrower one-week period immediately following the Closing Date in connection with the termination of certain employees of BJI, provided that the aggregate amount of such Restricted Junior Payments shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofnot exceed $230,000.
Appears in 2 contracts
Samples: Credit Agreement (Winsloew Furniture Inc), Credit Agreement (Winsloew Furniture Inc)
Restricted Junior Payments. The Borrower will Credit Parties shall not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any Restricted Junior Payment, or incur sum for any obligation (contingent or otherwise) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 except:
(i) so long as no Event of Default or Potential Event of Default has occurred and is continuing, or would result therefrom, Borrowers may pay Management Fees quarterly in arrears; provided, that (x) the aggregate amount of such payments by the Credit Parties during any Fiscal Quarter shall not exceed 5% of Borrowers' consolidated total revenues for any the previous Fiscal Quarter, (y) Lenders shall have received the Compliance Certificate and related financial information and reports required for such previous Fiscal Quarter (or previous Fiscal Year, (din the case of any Fiscal Quarter ending on any December 31) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted pursuant to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, subsection 5.1.; and (ez) the Borrower may make additional cash Restricted Junior Payments Borrowers shall have demonstrated pro forma compliance with all financial covenants as set forth in subsection 6.6 for such previous Fiscal Quarter, in form and substance satisfactory to Administrative Agent;
(ii) so long as at the time no Event of and after giving effect to each such Restricted Junior Payment, (i) no Default or Potential Event of Default shall have occurred and be continuing or would result therefrom, Borrowers may make one payment during each Fiscal Year referred to below to Parent to service debt incurred by Parent under the Premier Parent Note on the date Parent is required to make such corresponding payment under the Premier Parent Note; provided that (x) both before and after giving effect to either such payment the Leverage Ratio (calculated on a pro forma basis to give effect to such payment) does not exceed the correlative ratio indicated below, (y) Lenders shall have received an Officer's Certificate dated as of the date of such payment, stating that Borrowers are in compliance with the financial covenants set forth in this subsection 6.5(ii) with the Leverage Ratio calculated based on the Operating Cash Flow for the most recently ended Fiscal Quarter and (iiz) the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made total payments in reliance on this clause (e) any Fiscal Year shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and correlative amounts indicated below: ------------------------------------------------------------------------------ FISCAL YEAR RATIO TOTAL PAYMENT ------------------------------------------------------------------------------ 2002 5.10:1.00 $1,045,250 ------------------------------------------------------------------------------ 2003 4.75:1.00 $985,125 ------------------------------------------------------------------------------
(iii) the Borrower so long as no Event of Default or Potential Event of Default shall have delivered occurred and be continuing or would result therefrom, Borrowers may make one payment during each Fiscal Year referred to below to Parent to service debt incurred by Parent under the Administrative Agent NCP6 Parent Note on the date Parent is required to make such corresponding payment under the NCP6 Parent Note; provided that (x) both before and after giving effect to either such payment the Leverage Ratio (calculated on a certificate pro forma basis to give effect to such payment) does not exceed the correlative ratio indicated below, (y) Lenders shall have received an Officer's Certificate dated as of the chief financial officer date of the Borrower demonstrating compliance with clauses (i) and (ii) abovesuch payment, together with, in the case of clause (ii), reasonably detailed calculations in support thereof.stating that Borrowers are in
Appears in 2 contracts
Samples: Credit Agreement (Northland Cable Properties Six LTD Partnership), Credit Agreement (Northland Cable Properties Six LTD Partnership)
Restricted Junior Payments. The Borrower will not, not and will not permit any Subsidiary to, declare or make, or agree to pay or make, of its Subsidiaries directly or indirectlyindirectly to declare, order, pay, make or set apart any sum for any Restricted Junior PaymentPayment except:
(A) Borrower may make payments and distributions to Holdings to permit Holdings to pay federal and state income taxes then due and owing, or incur any obligation franchise taxes and other similar licensing expenses incurred in the ordinary course of business; provided, however, Borrower's contribution to taxes as a result of the filing of a consolidated return by Holdings shall not be greater, nor the receipt of tax benefits less, then they would have been had Borrower not filed a consolidated return with Holdings;
(contingent or otherwiseB) Subsidiaries of Borrower may make Restricted Junior Payments to do so, except that Borrower;
(aC) the Borrower or any Subsidiary may declare make required payments of principal and pay dividends, and make other distributions, interest with respect to its Equity Interests payable solely the Senior Term Loan, Additional Senior Term Loan and Subordinated Indebtedness held by SBA, as required in additional Equity Interestsaccordance with the terms thereof but only to the extent permitted in the Intercreditor Agreement; provided, (b) any Subsidiary however, Borrower may declare and pay dividends or make other distributions optional prepayments with respect to its Equity Interests ratably the Senior Term Loan, Additional Senior Term Loan and Subordinated Indebtedness held by SBA if (1) at the time of such prepayment, required payments of principal and interest are permitted to be paid pursuant to the holders Intercreditor Agreement and (2) after giving effect to such prepayment, the Maximum Revolving Loan Balance exceeds the sum of outstanding principal balance of the Revolving Loans plus outstanding Lender Guarantees, by not less than $5,000,000; provided, further, however, Borrower may refinance the Subordinated Indebtedness held by SBA with Refinanced Subordinated Indebtedness in accordance with subsection 3.1(G);
(D) Borrower may make required payments of principal and interest with respect to the Indebtedness evidenced by the Seller Notes provided at the time of such Equity Interestspayment and after giving effect thereto, no Event of Default under subsection 6.1(A) or 6.1(C) (cas it relates to a failure to perform or comply with subsections 4.3, 4.4 or 4.5 hereof) exists or would arise as a result thereof;
(E) Borrower may make dividend payments to Holdings solely to permit Holdings to make dividend payments on account of preferred stock of Holdings held by SBA provided at the time of such payment and after giving effect thereto, no Default or Event of Default under subsection 6.1(A) or 6.1(C) (as it relates to a failure to perform or comply with subsections 4.3, 4.4 or 4.5 hereof) exists or would arise as a result thereof;
(F) Borrower may make payments and distributions to Holdings, not to exceed $100,000 in the aggregate in any fiscal year, to permit Holdings to pay board of director fees and expenses and other out-of-pocket expenses;
(G) Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in required payments with respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as Additional Seller Notes provided at the time of such payment and after giving effect to each such Restricted Junior Paymentthereto, (i) no Default or Event of Default shall have occurred and be continuing and exists or would arise as a result thereof; and
(iiH) Borrower may make required payments of interest with respect to the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made Refinanced Subordinated Indebtedness as required in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing accordance with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered terms thereof but only to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, extent permitted in the case of clause (ii), reasonably detailed calculations in support thereofsubordination agreement entered into with respect thereto.
Appears in 2 contracts
Samples: Credit Agreement (Aki Holding Corp), Credit Agreement (Aki Holding Corp)
Restricted Junior Payments. The Borrower will notDeclare, and will not permit any Subsidiary topay, declare make or makeset apart, or agree to pay declare, pay, make or makeset apart, directly or indirectly, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make regularly scheduled payments in respect of any Subordinated Indebtedness in accordance with the terms of, and only to the extent not prohibited by, and subject to the subordination provisions pursuant to which such Subordinated Indebtedness was issued and, if applicable, pursuant to the Interco Subordination Agreement; each Subsidiary may make any Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services Payments to the Borrower and the to Subsidiaries in an amount required to satisfy tax withholding obligations related to the vestingand, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing in the case of a Restricted Junior Payment by a non-wholly-owned Subsidiary, to the Borrower, 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) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock of such Person, and (ii) Solectron Global Services Canada Inc. or 3942163 Canada Inc. may declare and pay dividends or make distributions with respect to its non-voting exchangeable shares as required by the sum instruments currently in effect governing the terms of such shares; provided that, any such dividend or distribution that is not in the form of such non-voting exchangeable Shares shall be deemed a dividend or distribution made by the Borrower for purposes of Section 7.06(f), and the Borrower must have sufficient availability under such subclause to permit the dividend or distribution; the Borrower 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 or Event of Default has occurred and is continuing; the Borrower and its Subsidiaries may make payments or distributions to dissenting stockholders pursuant to applicable law pursuant to or in connection with a Permitted Acquisition; the Borrower may make Restricted Junior Payments up to an amount equal to (i) $50,000,000.00, plus (ii) 50% of Consolidated Net Income of the amount Borrower 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 Borrower's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate or if such Consolidated Net Income for all completed Fiscal Years for which the financial statements required such period is a deficit, less 100% of such deficit) and computed on a cumulative basis with other such transactions under this Section 7.06(f) by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered since that date; provided, that, immediately after giving effect to such proposed action, no Default or Event of Default would exist; and the Administrative Agent a certificate of the chief financial officer Borrower 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 Borrower demonstrating compliance in connection with clauses an optional redemption of such Convertible Notes pursuant to the terms thereof, provided that the current market price per share of the Borrower's common stock (icalculated 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 is convertible equals or exceeds 150% of the conversion price in effect for such Convertible Notes on the date of such notice, and (ii) above, together withany payment of cash in lieu of any fractional shares deliverable upon conversion of any such Convertible Notes in 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 case amount available for Restricted Junior Payments under Section 7.06(f). Upon the receipt by the Administrative Agent of clause (ii)a notice confirming the Investment Grade Ratings of the Borrower, reasonably detailed calculations in support thereofthis Section 7.06 shall be terminated and be of no further force or effect.
Appears in 2 contracts
Samples: Credit Agreement (Solectron Corp), 364 Day Credit Agreement (Solectron Corp)
Restricted Junior Payments. The Borrower No Loan Party will, nor will not, and will not it permit any Subsidiary of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that except:
(a) dividends or distributions by a Restricted Subsidiary (other than Company) so long as, in the Borrower case of any dividend or distribution payable on or in respect of any shares of any class of stock issued by a Restricted Subsidiary may declare and pay dividendsother than a wholly-owned Restricted Subsidiary, and make other distributionsParent, Company or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with respect to its Equity Interests payable solely equity interests in additional Equity Interests, such class of stock);
(b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably Restricted Junior Payments to the holders extent necessary to permit Parent (or the relevant taxpaying Affiliate of Company or Parent), to discharge Tax liabilities (or estimates thereof) of Parent and its Restricted Subsidiaries, so long as Company or Parent (or the relevant taxpaying Affiliate) applies the amount of any such Equity Interests, Restricted Junior Payment for such purpose;
(c) the Borrower and its Subsidiaries Company may make Restricted Junior PaymentsPayments to Parent to finance NMTC Investments permitted under Section 6.3(u);
(d) dividend payments to Parent and other parent companies of Company to pay (i) overhead of Parent and such other parent companies of Company, not exceeding $100,000,000 (ii) salary and out of pocket costs and expenses of directors of PubCo and (iii) other fees, costs and expenses associated with PubCo being a public company; provided that in the aggregate for event the Incurrence Ratio as of any such dividend payment date during any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and calculated on a Pro Forma Basis after giving effect to each such dividend payments, would be equal to or greater than 3.50:1.00, the aggregate amount of dividend payments made pursuant to this clause (d) during any such Fiscal Year shall not exceed $20,000,000;
(e) Company and the Restricted 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 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 the Restricted Subsidiaries may convert Subordinated Indebtedness to, or exchange Subordinated Indebtedness for Capital Stock in accordance with terms of such Subordinated Indebtedness;
(f) Restricted Junior Payments expressly permitted by Section 6.8(a) and Section 6.8(b);
(g) so long as no Potential Event of Default or Event of Default has occurred and is continuing at such time or would be directly or indirectly caused as a result thereof, Company and the Restricted Subsidiaries may pay dividends to purchase capital stock from present or former officers or employees of Loan Parties upon the death, disability, retirement or termination of employment of such officer or employee; provided that any such repurchases do not involve any Cash payments by Loan Parties or, to the extent Cash payments are made by Loan Parties, the aggregate amount of dividend payments during any Fiscal Year to fund purchases described above shall not exceed $2,500,000 plus (ii) the unused amount available for such dividend payments under this Section 6.5(g) 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 applicable limitation for such year and then with respect to any carry-forward amount to the extent applicable plus (iii) the then-applicable Available Amount;
(h) Company may make Restricted Junior Payments as specifically required by the Sand Purchase Documents; and
(i) in addition to Restricted Junior Payments otherwise expressly permitted by this Section, (i) Company may make dividend payments to Parent and Parent may make dividend payments to its parent companies, and (ii) the Loan Parties may make payments in respect of Subordinated Indebtedness; provided that in any such case (A) the Incurrence Ratio as of such date, calculated on a Pro Forma Basis after giving effect to such Restricted Junior Payment, would be less than 2.50:1.00 and (iB) no Potential Event of Default or Event of Default shall have has occurred and is continuing or would be continuing and (ii) directly or indirectly caused as a result thereof; provided that nothing herein shall be deemed to prohibit the sum payment of the amount such dividends by any Restricted Subsidiary of Company to Company or any Subsidiary Guarantor. Notwithstanding anything herein, Restricted Junior Payment and Payments made after the Effective Date by any Loan Party or Restricted Subsidiary in a Non-Loan Party otherwise permitted by Section 6.5, will not be permitted if, immediately after giving effect thereto, the aggregate amount of all prior such Restricted Junior Payments together with any Investments made after the Effective Date by any Loan Party or Restricted Subsidiary in reliance on this clause (e) shall not exceed 50a Non-Loan Party otherwise permitted by Section 6.3 during the term of the Loans is more than the greater of $100,000,000 and 5% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken Tangible Assets as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofmost recently ended Fiscal Quarter.
Appears in 2 contracts
Samples: Credit Agreement (U.S. Silica Holdings, Inc.), Credit Agreement (U.S. Silica Holdings, Inc.)
Restricted Junior Payments. The Borrower will not, and will shall not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior Payment, except that, so long as the Facility Maturity Date has not been declared or incur any obligation automatically occurred and no Event of Default or Unmatured Event of Default has occurred and is continuing or would result therefrom, (contingent or otherwise) to do so, except that (aA) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably Restricted Junior Payments to the holders of its membership interests (x) on any day during the Revolving Period, from Interest Collections, Principal Collections or proceeds of any Advance (excluding any such Equity Interestsamounts needed such to settle the acquisition of any Eligible Loan Assets) so long as, (c) as certified to the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 Administrative Agent in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to writing by the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related Servicer (with a copy to the vestingCollateral Agent), settlement or exercise of to their knowledge and based upon the most current information then available to them (in each case both before and immediately after such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, distribution): (i) the amounts remaining on deposit in the Collection Account, together with amounts reasonably expected to be received on the Loan Assets prior to the next Determination Date shall be sufficient to pay all payments required to be made on the next Payment Date pursuant to Section 2.04(a)(i)-(xii) and Section 2.04(b)(i)-(vii); (ii) the Minimum Equity Amount is satisfied; and (iii) no Default or Event of Default Borrowing Base Deficiency shall have occurred and be continuing or would result therefrom, and (iiy) the sum of the amount such Restricted Junior on any Payment Date, from amounts available pursuant to Sections 2.04(a)(xiii), 2.04(b)(viii) and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e2.04(c)(xi) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iiiB) the Borrower shall have delivered may make Permitted RIC Distributions on any Business Day so long as, as certified to the Administrative Agent a certificate of the chief financial officer of in writing by the Borrower demonstrating compliance and the Servicer, to their knowledge and based upon the most current information then available to them (in each case both before and immediately after such distribution), the amounts remaining on deposit in the Collection Account, together with clauses (iamounts reasonably expected to be received on the Loan Assets prior to the next Determination Date shall be sufficient to pay all payments required to be made on the next Payment Date pursuant to Section 2.04(a)(i)-(xii) and (ii) above, together with, in the case of clause (iiSection 2.04(b)(i)-(vii), reasonably detailed calculations in support thereof.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (HPS Corporate Lending Fund), Loan and Servicing Agreement (HPS Corporate Lending Fund)
Restricted Junior Payments. The Borrower will shall not, and will shall not permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; provided that as long as no Event of Default or Potential Event of Default has occurred and is continuing, or incur any obligation would result therefrom, Borrower may (contingent or otherwisei) to do so, except that make Restricted Junior Payments of a type described in clauses (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interestsi), (biii) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to (v) of the holders definition thereof (provided that in the case of such Equity Interests, Investments included in clause (cv) of the Borrower and its Subsidiaries may make definition of Restricted Junior Payments, all liability, risk or other exposure with respect to any such Investment is limited solely to the loss of the amount so invested) of $12,500,000 in an aggregate cumulative amount for any four consecutive fiscal quarter period, (ii) make regularly scheduled interest payments on the Senior Subordinated Notes; (iii) redeem or repurchase the Senior Subordinated Notes in an aggregate principal amount not exceeding to exceed $100,000,000 25,000,000 with the proceeds of equity or equity rights having terms no more favorable to the holder thereof (including, without limitation, terms concerning default, payment and redemption) than the terms of the Senior Subordinated Notes or as may otherwise be approved by Requisite Lenders; (iv) redeem any rights to purchase capital stock of Borrower which rights were issued pursuant to the Rights Agreement, dated as of December 6, 1995, as amended, between Borrower and First Bank of Chicago Trust Company of New York, as rights agent, for an amount not to exceed on a per right basis the redemption price of such right as of the Closing Date, as adjusted for stock dividends and similar transactions; (v) purchase, redeem, acquire, cancel or otherwise retire for value shares of capital stock of Borrower, options on any 104 such shares or related stock appreciation rights or similar securities (any of the foregoing being a "Borrower Stock Purchase") held by officers or employees or former officers or employees (or their estates or beneficiaries under their estates) or by any employee benefit plan, upon death, disability, retirement or termination of employment or pursuant to the terms of any employee benefit plan approved by the Board of Directors of Borrower or a committee thereof or under any other agreement approved by such Board of Directors or a committee thereof under which such shares of stock or related rights were issued; provided, however, that the aggregate cash consideration paid for such purchase, redemption, acquisition, cancellation or other retirement of such shares of capital stock or related rights after the Closing Date shall not exceed $2,500,000 in the aggregate for any Fiscal Year or $1,000,000 in the aggregate payable to any individual in any Fiscal Year; (vi) repay the Senior Subordinated Notes with the proceeds of Refinancing Indebtedness; and (vii) in addition to transactions permitted by clauses (iii), (dv) and (vi) above, use cash on hand to redeem or repurchase the Senior Subordinated Notes, the Refinancing Indebtedness and/or make Borrower Stock Purchases; provided that Excess Availability both as of the date of such redemption and repurchase (after giving effect to such redemption and repurchase and assuming that (A) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors"Revolving Loan Commitment" under, officersand as defined in, employees or other providers of services the Existing Credit Agreement was $200,000,000 at all times prior to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, Restatement Effective Date and (eB) if Borrower has refinanced the Borrower may make additional cash Restricted Junior Payments so long as Senior Subordinated Notes at the time of determination, Borrower had had any Refinancing Surplus available to it at all times prior to the date of determination) and after giving effect for the last day of each of the four fiscal quarters ending prior to each such Restricted Junior Paymentdate of redemption and repurchase, (i) no Default shall not be less than $15,000,000 and prior to such redemption or Event of Default repurchase Managing Agent shall have occurred and be continuing and (ii) the sum received an Officer's Certificate of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case form and substance satisfactory to Managing Agent, confirming such Excess Availability in reasonable detail as of clause (ii), reasonably detailed calculations in support thereofsuch date and for such dates.
Appears in 1 contract
Samples: Credit Agreement (Hartmarx Corp/De)
Restricted Junior Payments. The Borrower will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, Make any Restricted Junior Payment; provided, or incur any obligation (contingent or otherwise) to do sohowever, except that (a) the Borrower or any Subsidiary may declare and pay dividendsthat, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) it is permitted by law: so long as no Default or Event of Default shall have occurred and be continuing and or would result therefrom, Borrower may make distributions to current or former employees, officers, or directors of Borrower or any Subsidiary (ii) the sum or any spouses, ex-spouses, trusts or estates of any of the amount foregoing) on account of redemptions, purchase, retirement or other acquisition for value of Capital Interests of Borrower or the direct or indirect parent of Borrower held by such Restricted Junior Payment and Persons, so long as either: (A)(1) the aggregate amount of such redemptions, purchases, retirement, other acquisitions for value, or payments made by Borrower in cash since June 18, 2013 does not exceed the sum of (x) $2,500,000 in any fiscal year (provided that if less than $2,500,000 is used for such purposes in any fiscal year, any unused amounts may be carried forward for use in one or more future periods; provided, further, that the aggregate amount of repurchases made pursuant to this clause (A)(1)(x) may not exceed $5,000,000 in any fiscal year); plus (y) the cash proceeds of key man life insurance policies received by Borrower and its Subsidiaries after June 18, 2013 (it being understood that Borrower may elect to apply all prior or any portion of the aggregate increase contemplated by this clause (A)(1)(y) in any calendar year); or (B) otherwise the Additionalthe aggregate amount of such Restricted Junior Payments made would not exceed the available Builder Basket Amount to the extent the Builder Basket Conditions are met; Borrower may make distributions to current or former employees, officers, or directors of Borrower or any Subsidiary (or any spouses, ex-spouses, trusts or estates of any of the foregoing), solely in reliance the form of forgiveness of Indebtedness of such Persons owing to Borrower on account of repurchases of the Capital Interests of Borrower or the direct or indirect parent of Borrower held by such Persons; provided that such Indebtedness was incurred by such Persons solely to acquire Capital Interests of Borrower or the direct or indirect parent of Borrower; so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the AdditionalBuilder Basket Conditions are met, Borrower may make distributions or payments (including payments in respect of Redeemable Capital Interests) up to the available Builder Basket Amount; Borrower may make distributions or other dividends to its parent entities for (i) corporate franchise taxes of such parent entities and taxes actually owed by Borrower or the consolidated group of the Borrower and its Subsidiaries, (ii) reasonable legal, accounting and other professional fees and expenses, and other out of pocket third party transactions expenses not owing to lenders, noteholders or their agents or trustees (including, to the extent applicable, printer costs, filing fees, rating costs and appraisals), in each case in connection with an initial public offering of such parent entity, follow-on offerings, or other financing transactions that are deleveraging events for such parent entity and its Subsidiaries, in an aggregate amount not to exceed $10.0 million, (iii) costs incurred to comply with Borrower’s or its parent entities’ reporting obligations under federal or state laws or as required to comply with the ABL Loan Documents, the Notes Documents, the 2017 Notes Documents, the documentation for Additional Notes, the documentation for the PIK Toggle Notes, the MSD Term Loan Documents, the Specified Pari Passu Ratio Debt, the Junior Debt or the Loan Documents, (iv) other customary corporate overhead expenses of such parent entity in the ordinary course of business to the extent attributable to the operations and activities of the Borrower and its Subsidiaries; and (v) purchase consideration with respect to an Acquisition permitted under this Agreement; provided that in no event shall any amount be dividended or otherwise distributed pursuant to this clause (ed) shall to make payment of any principal, interest, fees, costs, expenses or other amount owing under, or with respect to, the PIK Toggle Notes; [RESERVED]; the payment of any dividend or other distribution on, or the consummation of any irrevocable redemption of, Capital Interests in Borrower within 60 days after declaration or setting the record date for redemption thereof, as applicable, if at such date such payment would not exceed 50% have been prohibited by the provisions of this Section 6.9; the retirement of any Capital Interests of Borrower or any direct or indirect parent of Borrower by conversion into, or by or in exchange for, Qualified Capital Interests, or out of net cash proceeds of the issuance or sale (other than to a Subsidiary of Borrower) of Qualified Capital Interests of Borrower or equity contribution into the Borrower occurring within 60 days prior to such retirement, or the making of other Restricted Junior Payments out of the net cash proceeds of capital contributions or the issuance or sale (other than to a Subsidiary of Borrower) of Qualified Capital Interests of Borrower occurring within 60 days of such Restricted Junior Payment; repurchase of Capital Interests of Borrower deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities to the extent such Capital Interests represents a portion of the exercise price of those stock options, warrants or other convertible or exchangeable securities or repurchase of such Capital Interests to the extent the proceeds of such repurchase are used to pay taxes incurred by the holder thereof as a result of the issuance or grant thereof; cash payment, in lieu of issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for the Capital Interests of Borrower or a Subsidiary thereof; the declaration and payment of dividends on the Borrower’s common stock (or the declaration and payment of dividends to any direct or indirect parent entity to fund a payment of dividends on such entity’s common stock), following any Qualified Equity Offering after the date hereof, of up to 6% per annum of the net cash proceeds received by or contributed to the Borrower in the form of Qualified Capital Interests or cash capital contribution in or from such offering to the extent not otherwise applied or utilized in the business of Borrower and its Subsidiaries; other Restricted Junior Payments in an aggregate Consolidated Net Income amount since June 18, 2013 not in excess of $15,000,000 (minus any amount utilized in reliance of the baskets specified under Section 6.7(a)(i)(I) and clause (o) of “Permitted Investments” definition); dividends or other distributions by Borrower to the PIK Toggle Issuer made in lieu of a Specified Intercompany Loan or a direct purchase or acquisition of PIK Toggle Notes solely for all completed Fiscal Years purposes of the PIK Toggle Issuer directly purchasing or acquiring PIK Toggle Notes in a Permitted Deleveraging Transaction, in any event, so long as (1) the cash proceeds from such dividend or other distribution are used by the PIK Toggle Issuer to purchase or acquire and cancel such PIK Toggle Notes upon the consummation of such purchase or acquisition and are not used for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period any other purpose; and (iii2) the Borrower shall have delivered to the Administrative Agent a certificate extent such cash proceeds are cash proceeds from the Loans, such cash proceeds are used by the PIK Toggle Issuer, within 120 days after the Closing Date, to purchase or acquire and cancel such PIK Toggle Notes upon the consummation of such purchase or acquisition and are not used for any other purpose; and Borrower may make distributions to the chief financial officer of PIK Toggle Notes Issuer, within 30 days after the Borrower demonstrating compliance with clauses (i) and (ii) above, together withFirst Amendment Effective Date, in the case aggregate amount not to exceed $[2,500,000]3,000,000 for the sole purpose of clause repurchasing or redeeming warrants (iior Capital Interests issued upon exercise of warrants), reasonably detailed calculations in support thereof.; and
Appears in 1 contract
Restricted Junior Payments. The Borrower will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, Make any Restricted Junior Payment; provided, or incur any obligation (contingent or otherwise) to do so, except that (a) the Borrower or any Subsidiary of Parent may declare and pay dividends, and make dividends to a Loan Party (other distributions, with respect to its Equity Interests payable solely in additional Equity Intereststhan Parent), (b) any Subsidiary of Parent may declare and pay dividends or make other distributions with respect to Parent (i) in amounts necessary to pay customary expenses of the Parent in the ordinary course of its Equity Interests ratably 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 the holders of such Equity Interestspay taxes when due and owing by Parent, (c) the Borrower and its Subsidiaries any Subsidiary of Parent may make Restricted Junior PaymentsPayments to its shareholders and employees and management personnel of its shareholders pursuant to the terms of the shareholder agreements or similar agreements between such Subsidiary and such shareholders, not exceeding $100,000,000 including without limitation payments in respect of and pursuant to the aggregate for any Fiscal YearPut Obligations, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower Parent and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments any purchase, repurchase or redemption of options, stock appreciation rights, restricted stock units and/or restricted stock of Parent or any of its Subsidiaries to satisfy any applicable tax withholding obligations of directors, officers or employees of Parent or such Subsidiary up to an amount not exceed $1,000,000 in any fiscal year so long as at any such purchase, repurchase or redemption is permitted pursuant to the time underlying equity incentive plan or restricted stock or restricted stock unit grant, (e) any Loan Party may make payments in respect of Earn-outs made pursuant to the terms of the definitive documentation for any Permitted Acquisition, and after giving effect to each such Restricted Junior Payment, (f) so long as (i) no Default or Event of Default shall have occurred and be continuing exists or would otherwise arise as a result thereof and (ii) the sum Excess Availability, after giving effect thereto, exceeds $15,000,000 (or, if a Revolver Increase has been made in accordance with Section 2.2, an amount equal to $15,000,000 plus 40% of the amount such Restricted Junior Payment and the aggregate amount of all prior Revolver Increases), Parent and its Subsidiaries may make Restricted Junior Payments made in reliance any fiscal year ending on this clause or after December 31, 2009, not otherwise permitted pursuant to clauses (a) through (e) shall above, up to an amount not to exceed 50% of Excess Cash Flow for the Borrower’s aggregate Consolidated Net Income immediately prior fiscal year (provided, that for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year fiscal year ending on December 31, 20122009, taken as a single accounting period such amount shall not exceed the lesser of (x) $10,000,000 and (iiiy) 50% of Excess Cash Flow for the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) abovefiscal year ending on December 31, together with, in the case of clause (ii2008), reasonably detailed calculations in support thereof.
Appears in 1 contract
Samples: Credit Agreement (MDC Partners Inc)
Restricted Junior Payments. The Borrower will Borrowers shall not, and will shall not permit any Subsidiary of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sinking fund, defeasance fund or other sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that except:
(a) the Borrower Borrowers may make regularly scheduled payments and mandatory prepayments (not including any payments upon an acceleration) of principal and interest in respect of any Other Indebtedness of the Borrowers in accordance with the terms of, and only to the extent required by the agreement pursuant to which such Other Indebtedness was issued, provided that (i) any such payments shall be subject to the terms of the Credit Parties Intercreditor Agreement, the Axxxxxx Intercreditor Agreement and the Axxxxxx Completion Guaranty, as applicable, (ii) any such payments in respect of any Completion Guaranty Note or any Subsidiary Employee Repurchase Note may declare be made only to the extent that no Event of Default or Default shall then exist and pay dividendsbe continuing or would result therefrom and (iii) any such payments in respect of any Employee Repurchase Note may be made only to the extent that the ratio 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 110 financial officer of each of the Borrowers, and make other distributionson behalf of each of the Borrowers, with respect to its Equity Interests payable solely in additional Equity Interests, at the time of such payment;
(b) any the Borrowers and the Mall Construction Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably prepay the Interim Mall Loan from any loss proceeds related to the holders of such Equity Interests, collateral for the Interim Mall Loan to the extent required by the Interim Mall Credit Agreement and in accordance with the Credit Parties Intercreditor Agreement;
(c) the Borrower Borrowers and its Subsidiaries the Mall Construction Subsidiary may make Restricted Junior Paymentsthe payments, not exceeding $100,000,000 in if any, which may be deemed to be made to the aggregate for any Fiscal YearInterim Mall Lender, funded from proceeds paid by the Mall Subsidiary to VCR or the Mall Construction Subsidiary under the Sale and Contribution Agreement, solely as a result of the assumption of the obligations under the Interim Mall Credit Agreement by the Mall Subsidiary;
(d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower Borrowers and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and Mall Construction Subsidiary may issue common Equity Interests to settle rights make any payments in respect of Equity Intereststhe Substitute Tranche B Loan which are either funded from proceeds paid by the Mall Subsidiary to VCR or the Mall Construction Subsidiary under the Sale and Contribution Agreement or which may be deemed to occur solely as a result of the assumption of the obligations under the Substitute Tranche B Loan by the Mall Subsidiary, and provided that no cash payments on the Substitute Tranche B Loan may be made from such proceeds unless the Interim Mall Loan has been repaid in full;
(e) the Borrower Borrowers and the Mall Subsidiary may make additional cash Restricted Junior Payments so long as at repay the time Substitute Tranche B Loan or the Interim Mall Facility from the proceeds of and after giving effect to each such Restricted Junior Payment, (i) no Default any "Interim Mall Loan Refinancing" included in the definition of the term "Interim Mall Facility" set forth in section 1.1 of the Bank Credit Agreement or Event of Default shall have occurred and be continuing and (ii) the sum a refinancing of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereof.Substitute Tranche B Loan permitted under section 6.3;
Appears in 1 contract
Samples: Term Loan and Security Agreement (Grand Canal Shops Mall Construction LLC)
Restricted Junior Payments. The Borrower will not, not and will not permit any Subsidiary to, declare or make, or agree to pay or make, of its Subsidiaries directly or indirectlyindirectly to declare, order, pay, make or set apart any sum for any Restricted Junior Payment, except that:
(A) Borrower may make Permitted Tax Distributions and Permitted Distributions for Pre-Closing Tax Liabilities;
(B) Wholly-owned Subsidiaries of Borrower may make Restricted Junior Payments to Borrower or incur wholly-owned Subsidiaries of Borrower.
(C) Borrower may make any obligation prepayment of the Subordinated Notes permitted by Section 1.5(D);
(contingent D) Borrower may make payments (but not prepayments) of scheduled interest and principal in accordance with the terms of the Subordinated Notes;
(E) Borrower may make distributions that are used to repurchase, redeem or otherwise) otherwise acquire for value any membership interest of the Borrower held by any member of the Borrower's or a Subsidiary's management pursuant to do soany management equity subscription agreement or stock option agreement or similar agreement, except that (a) or otherwise upon their death, disability, retirement or termination of employment or departure from the Management of the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely not in additional Equity Interests, excess of the lesser of (bi) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 1,000,000 in the aggregate for in any Fiscal Yeartwelve month period, or (dii) $5,000,000 in the Borrower may redeem aggregate since the Closing Date; provided that no Default or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers Event of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as Default exists at the time of and after giving effect to each any such Restricted Junior PaymentPayment described in this paragraph (E) or would occur as a result thereof; and
(F) Contemporaneously with the payment of a Restricted Junior Payment allowed under clause (B) of this Section 3.5, a Subsidiary of Borrower that is not a wholly-owned Subsidiary may make a Restricted Junior Payment to a Person other than Borrower or a wholly-owned Subsidiary of Borrower, provided that (i) no Default or Event of Default shall have occurred and be continuing and exists at the time of such Restricted Junior Payment or would result therefrom and, (ii) the sum of the amount such Restricted Junior Payment and made to such Person is proportionate to the aggregate amount of all prior contemporaneous Restricted Junior Payments Payment made in reliance on this under such clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (iiB), reasonably detailed calculations in support thereof.
Appears in 1 contract
Samples: Credit Agreement (Cherokee International Finance Inc)
Restricted Junior Payments. The Borrower No Loan Party will, nor will not, and will not it permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that except:
(a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, [Reserved];
(b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, [Reserved];
(c) Restricted Junior Payments to the Borrower extent necessary to permit Parent (or the relevant taxpaying Affiliate of Company or Parent), to discharge Tax liabilities (or estimates thereof) of Parent and its Subsidiaries, so long as Company or Parent (or the relevant taxpaying Affiliate) applies the amount of any such Restricted Junior Payment for such purpose;
(d) [Reserved];
(e) Company may make Restricted Junior Payments to Parent to finance NMTC Investments permitted under Section 6.3(u);
(f) [Reserved];
(g) dividend payments to Parent and other parent companies of Company to pay (i) overhead of Parent and such other parent companies of Company, (ii) salary and out of pocket costs and expenses of directors of PubCo and (iii) other fees, costs and expenses associated with PubCo being a public company; provided that the aggregate amount of dividend payments made pursuant to this clause (g) during any Fiscal Year shall not exceed $3,000,000;
(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 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 PaymentsPayments expressly permitted by Section 6.9(a) and Section 6.9(b);
(j) so long as no Potential Event of Default or Event of Default has occurred and is continuing at such time or would be directly or indirectly caused as a result thereof, Company and its Subsidiaries may pay dividends to purchase capital stock from present or former officers or employees of Loan Parties upon the death, disability, retirement or termination of employment of such officer or employee; provided that any such repurchases do not exceeding $100,000,000 in involve any Cash payments by Loan Parties or, to the extent Cash payments are made by Loan Parties, the aggregate amount of dividend payments during any Fiscal Year to fund purchases described above shall not exceed (i) $1,000,000 plus (ii) the unused amount available for such dividend payments under this Section 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 applicable limitation for such year and then with respect to any carry-forward amount to the extent applicable plus (diii) the Borrower then-applicable Available Amount;
(k) Company may redeem or make Restricted Junior Payments as specifically required by the Sand Purchase Documents; and
(l) in addition to Restricted Junior Payments otherwise cancel Equity Interests or rights in respect thereof granted expressly permitted by this Section, (i) Company may make dividend payments to directors, officers, employees or other providers of services Parent and Parent may make dividend payments to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rightsits parent companies, and (ii) the Loan Parties may issue common Equity Interests to settle rights make payments in respect of Equity Interests, and Subordinated Indebtedness; provided that in any such case (eA) the Borrower may make additional cash Restricted Junior Payments so long Incurrence Ratio as at the time of and such date, calculated on a Pro Forma Basis after giving effect to each such Restricted Junior Payment, would be less than 3.00:1.00 and (iB) no Potential Event of Default or Event of Default shall have has occurred and is continuing or would be continuing and (ii) the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken directly or indirectly caused as a single accounting period and (iii) result thereof; provided that nothing herein shall be deemed to prohibit the Borrower shall have delivered payment of dividends by any Subsidiary of Company to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofCompany or any Subsidiary Guarantor.
Appears in 1 contract
Restricted Junior Payments. The No Borrower will not, and nor will not any Borrower permit any Subsidiary to, declare or make, or agree other Loan Party to pay or make, directly or indirectlyindirectly declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that that:
(a) the Subsidiaries of any Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in Payments with respect thereof granted to directors, officers, employees or other providers of services their common stock to the extent necessary to permit such Borrower and to pay the Subsidiaries in an amount required Obligations, to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments permitted under clauses (b) and (c) below and to permit such Borrower to pay expenses incurred in the ordinary course of business;
(b) Guardian may consummate repurchases of its outstanding capital stock from its stockholders (other than Westar or members of the Xxxxxxxx Group) so long as (i) at the time of any such repurchase and after giving effect to each such Restricted Junior Paymentthereto (x) Borrowers shall have Availability of not less than $1,000,000, and (iy) no Default or Event of Default shall have occurred and be continuing continuing, and (ii) the sum aggregate amount of such repurchases does not exceed $100,000; and
(c) Guardian may declare and pay cash dividends on the amount Preferred Stock as and when payable pursuant to the terms of Guardian's charter, the Westar Equity Documents and the Supplemental Westar Equity Documents, provided that (i) at the time any such Restricted Junior Payment dividend is declared and paid and after giving effect thereto (x) Borrowers shall have a ratio of Total Indebtedness to EBIDAT (calculated on the basis of Borrowers' financial statements for the then most recently ended fiscal month after giving pro forma effect to the payment of such dividend) of at least the ratio then required pursuant to subsection 6.4 for the most recently ended month for which monthly financial statements and a Compliance Certificate are required to be delivered pursuant to Annex B, (y) Borrowers shall have Availability of not less than $1,000,000, and (z) no Default or Event of Default shall have occurred and be continuing, and (ii) the aggregate amount of all prior Restricted Junior Payments made in reliance such cash dividends declared and paid on this clause (e) any payment date therefor shall not exceed 50% the amount required to be paid as of such date pursuant to the terms of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which Westar Equity Documents and the financial statements Supplemental Westar Equity Documents as in effect on the Effective Date and, without limitation of the foregoing (x) during the period commencing November 24, 1997 and ending on November 24, 1999, dividends on the Series A Preferred Stock declared and paid on any payment date therefor shall be paid solely by the issuance of additional shares of Series A Preferred Stock in the amount required by Section 5.01(b) shall have been deliveredon such payment date pursuant to the terms of the Westar Equity Documents, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iiiy) during the Borrower period commencing February 23, 1998 and ending on February 23, 2000, dividends on the Series B Preferred Stock declared and paid on any payment date therefor shall have delivered be paid solely by the issuance of additional shares of Series B Preferred Stock in the amount required on such payment date pursuant to the Administrative Agent a certificate terms of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofSupplemental Westar Equity Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Guardian International Inc)
Restricted Junior Payments. The Directly or indirectly declare, -------------------------- order, pay, make or set apart any sum for any Restricted Junior Payment, except that: (a) Borrower will notmay satisfy the Senior Subordinated Notes and related obligations with the proceeds of the Initial Public Offering as contemplated by subsection 3.1(b) and may apply proceeds of the Initial Public Offering to the repurchase of preferred stock of GII, (b) so long as no Event of Default or Payment Default is continuing, (i) GII may repurchase stock of former employees of Borrower upon the death, retirement or other cessation of employment of such employee, in an aggregate amount for all such former employees not to exceed $250,000 plus the amount of any cash consideration paid after the Closing Date (and will not permit any Subsidiary to, declare or make, or agree required to pay or makebe paid as of the Closing Date) by employees of Borrower for common stock of GII and contributed by GII, directly or indirectly, any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividendscommon equity of Borrower, and make other distributions(ii) dividends by Borrower to GII, with respect of amounts necessary to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare fund such repurchases and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interestsused therefor, (c) the Borrower may repurchase, redeem or prepay outstanding Indebtedness, in addition to amounts due and its Subsidiaries may make Restricted Junior Paymentspayable by their respective terms, in an amount not exceeding in excess of $100,000,000 200,000 in the aggregate for any Fiscal Year, from and after the Closing Date and (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be or Payment Default is continuing and (ii) the sum or would occur as a result of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on any dividend under this clause (e) shall not exceed 50% d), and so long as the Borrowing Availability (as evidenced by the delivery of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(bdaily Borrowing Base Certificates) shall have been delivered, commencing with not less than $4,000,000 for each of the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered sixty consecutive days prior to the Administrative Agent a certificate date of payment of such dividend, and Approved Projections shall demonstrate that Borrowing Availability shall be not less than $4,000,000 as of the chief financial officer last day of each of the three full calendar months next following the date of payment of such dividend, Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofmay pay dividends to GII.
Appears in 1 contract
Samples: Loan and Security Agreement (Gradall Industries Inc)
Restricted Junior Payments. The Neither the Borrower nor any Restricted Subsidiary will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that that:
(a) the Borrower or and any Restricted Subsidiary may declare and pay dividends, and make dividends or other distributions, distributions with respect to its Equity Interests payable solely in additional Equity Interests, Interests in such Person permitted hereunder;
(b) any Restricted Subsidiary may declare and pay dividends or make other distributions with respect to its capital stock, and declare and make other Restricted Junior Payments in respect of its Equity Interests Interests, in each case ratably to the holders of such Equity InterestsInterests (or, if not ratably, on a basis more favorable to the Borrower and the Restricted Subsidiaries);
(c) the Borrower and its Subsidiaries may make Restricted Junior Paymentspayments in respect of, not exceeding $100,000,000 in or repurchases of its Equity Interests deemed to occur upon the aggregate for any Fiscal Year“cashless exercise” of, stock options, stock purchase rights, stock exchange rights or other equity-based awards if such payment or Equity Interests represents a portion of the exercise price of such options or rights or withholding taxes, payroll taxes or other similar taxes due upon such exercise, purchase or exchange;
(d) the Borrower may redeem or otherwise cancel make cash payments in lieu of the issuance of fractional shares representing Equity Interests or rights in respect thereof granted to directorsthe Borrower in connection with the exercise of warrants, officers, employees options or other providers of services to Securities convertible into or exchangeable for common stock in the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and Borrower;
(e) the Borrower may make additional cash Restricted Junior Payments in respect of its Equity Interests pursuant to and in accordance with stock option plans or other benefit plans or agreements for directors, officers or employees of the Borrower and the Subsidiaries; provided that the amount of any such Restricted Junior Payments, together with the aggregate amount of all other Restricted Junior Payments made in reliance on this clause (e) during the same Fiscal Year, shall not exceed the sum of (i) the greater of (x) $10,000,000 and (y) 0.50% of Consolidated Total Assets as of the last day of the then most recently ended Test Period, plus (ii) any unutilized portion of such amount in any preceding Fiscal Year ended after the Closing Date;
(f) so long as at no Default or Event of Default shall have occurred and be continuing, the time Borrower may repurchase common stock in the Borrower, provided that the aggregate amount of and after giving effect such repurchases shall not exceed the quotient obtained by dividing (i) the aggregate principal amount of all prepayments of the Tranche B Term Loans (other than any prepayments pursuant to each Section 2.14 or in connection with any other refinancing of any Tranche B Term Loans (including on account of incurrence of any Permitted Credit Agreement Refinancing Indebtedness)) by (ii) three (such repurchases, “Permitted Stock Repurchases”);
(g) to the extent constituting Restricted Junior PaymentPayments of the type referred to in clause (a) or (b) of the definition of such term, the Borrower and the Restricted Subsidiaries may consummate the transactions permitted by Section 6.6 (other than in reliance on Section 6.6(r)) and Section 6.8 (other than in reliance on Section 6.8(b)(i)(D)) (it being understood that this clause (g) may be relied on to consummate any transaction that is technically subject to this Section 6.4 but is intended to be restricted primarily by any such other Section, but may not be relied on to consummate any transaction that is intended to be restricted primarily by this Section 6.4);
(h) the Borrower and the Restricted Subsidiaries may make regularly scheduled interest and principal payments as and when due in respect of any Junior Indebtedness (including any “AHYDO catch-up payment” with respect to, and required by the terms of, any indebtedness of the Borrower or any Restricted Subsidiary), other than payments in respect of Subordinated Indebtedness prohibited by the subordination provisions thereof;
(i) the Borrower and the Restricted Subsidiaries may refinance Junior Indebtedness with the proceeds of other Indebtedness to the extent permitted under Section 6.1;
(j) the Borrower and the Restricted Subsidiaries may make payments of or in respect of Junior Indebtedness made solely with Equity Interests in the Borrower (other than Disqualified Equity Interests);
(k) the Borrower and the Restricted Subsidiaries may make additional Restricted Junior Payments in respect of working capital adjustments or purchase price adjustments made pursuant to the Life Sciences Sale Agreement (as in effect on the Closing Date); and
(l) the Borrower and the Restricted Subsidiaries may make additional Restricted Junior Payments, provided that (i) no Default or Event of Default shall have occurred and be continuing and or would result therefrom, (ii) immediately prior to the sum making thereof, and immediately after giving effect to the making thereof on a Pro Forma Basis (including any related incurrence of Indebtedness), the Total Net Leverage Ratio, determined as of the last day of the then most recently ended Test Period (or in the case of any Restricted Junior Payment of the type described in clause (a) of the definition thereof, the Test Period most recently ended prior to the time of the declaration thereof), shall not exceed 3.75:1.00, (iii) the amount of any such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which Available Basket Amount at the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period time such Restricted Junior Payment is made and (iiiiv) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer a Financial Officer of the Borrower certifying that all the requirements set forth in this clause (l) have been satisfied with respect to such Restricted Junior Payment and including reasonably detailed calculations demonstrating compliance with satisfaction of the requirements set forth in clauses (iii) and (iiiii) above. Notwithstanding anything to the contrary in this Section 6.4, together withneither the Borrower nor any Restricted Subsidiary shall make any Restricted Junior Payment with the Net Proceeds of the Specified Disposition, in the case of clause (iiexcept any Restricted Junior Payment permitted by Section 6.4(b), reasonably detailed calculations in support thereof.
Appears in 1 contract
Restricted Junior Payments. The Borrower will shall not, and will shall not permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order or pay any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time no Event of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and or occurs as a result thereof Borrower may make the following Restricted Junior Payments: (i) payment of all Subordinated Debt owed to Circus (the principal amount of which is $35,103,549) on the Closing Date, together with interest thereon through the Closing Date; (ii) Tax Distributions to General Partners in proportion to their Percentage Interests; (iii) In addition to the sum foregoing, during the Make-Well Period, Other Borrower Distributions which do not exceed 45% of Available Cash Flow for the period beginning with the first full fiscal quarter after the Closing Date and ending with the then most recently ended fiscal quarter (calculated without reduction for such Other Borrower Distribution), provided that no such Borrower Distributions shall be made if the Make-Well Leverage Ratio (as of the amount then most recent Fiscal Quarter and on a pro forma basis giving effect to such payment) would be in excess of 4.75:1.00; and (iv) In addition to the foregoing, following the Make- Well Period, Other Borrower Distributions which do not exceed 25% of Available Cash Flow for the period beginning with the first day of the fiscal quarter during which the Make-Well Period ended and ending with the then most recently ended fiscal quarter (calculated without reduction for such Other Borrower Distributions); Neither Borrower nor any of its Subsidiaries may directly or indirectly declare, order, pay or make, or set apart any sum or property for, any Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on or agree to do so except as permitted by this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereof7.5.
Appears in 1 contract
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries or Affiliates through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that that:
(a) Borrower may make regularly scheduled payments of interest and mandatory prepayments of principal (other than any such prepayments arising from defaults or events of default) in respect of any Senior Notes in accordance with the Borrower or any Subsidiary may declare and pay dividendsterms of, and make other distributionsonly to the extent required by, with respect to its Equity Interests payable solely in additional Equity Interests, the Senior Notes Documents;
(b) any Subsidiary may declare and pay dividends or make other distributions Borrower may, within five Business Days following the Closing Date, repay the portion of the Existing Refinanced Indebtedness not repaid on the Closing Date in an aggregate amount not to exceed $6,336,137.77 with respect to its Equity Interests ratably to the holders of such Equity Interests, Exchange Note Cash Collateral Proceeds;
(c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Holdings may make Restricted Junior Payments to Parent (i) in an aggregate amount not to exceed in any Fiscal Year 50% of the aggregate amount of Parent's general administrative costs and expenses for such Fiscal Year, and (ii) to the sum extent necessary to permit Parent to discharge the consolidated tax liabilities of Parent and its Subsidiaries so long as such liabilities are attributable to the consolidated operations of Holdings and its Subsidiaries, in each case so long as Parent applies the amount of any such Restricted Junior Payment and for such purpose; provided, that the aggregate amount of all prior Restricted Junior Payments made in reliance on pursuant to this clause (ec)(ii) shall not exceed 50% the amount of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which relevant tax (including any penalties and interest) that Holdings would owe if Holdings were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members of the financial statements required by Section 5.01(bconsolidated or combined group with Parent), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of Holdings and such Subsidiaries from other taxable years;
(d) so long as no Default or Event of Default shall have been deliveredoccurred and be continuing or shall be caused thereby, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered Xxxxxxx may make Restricted Junior Payments to Designated Xxxxxxx Parent to the Administrative Agent a certificate extent necessary to permit Designated Xxxxxxx Parent to discharge the consolidated tax liabilities of the chief financial officer of the Borrower demonstrating compliance with clauses Designated Xxxxxxx Parent and its Subsidiaries so long as (i) such liabilities are attributable to the consolidated operations of Xxxxxxx and its Subsidiaries and (ii) aboveDesignated Xxxxxxx Parent applies the amount of any such Restricted Junior Payment for such purpose; provided, together withthat the Restricted Junior Payments made pursuant to this clause (d) shall not exceed the amount of the relevant tax (including any penalties and interest) that Xxxxxxx would owe if Xxxxxxx 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 with Designated Xxxxxxx Parent), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of Xxxxxxx and such Subsidiaries from other taxable years;
(e) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Holdings may make payments to Parent, and Xxxxxxx may make payments to Designated Xxxxxxx Parent that would enable Designated Xxxxxxx Parent to make such payments to Parent, in each case to permit Parent to pay in aggregate up to 100% of regularly scheduled cash interest payments under the case of clause Convertible Notes, provided that (i) such amounts are used by Parent for such purposes and (ii)) any amounts in excess of 50% of such regularly scheduled cash interest payments shall not be paid hereunder at any time that cash on hand of the Credit Parties, reasonably detailed calculations which is otherwise available to repay other Indebtedness and is deposited in support thereofBlocked Accounts, does not exceed $50,000,000;
(f) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Holdings and Xxxxxxx may pay dividends or make other distributions to holders of their respective Equity Interests so long as the proceeds thereof are simultaneously used by such holders to either (i) purchase from Borrower preferred Equity Interests of Xxxxxxx or (ii) make payments of principal or interest on any promissory note or other Indebtedness of such holders owing to Borrower or Xxxxxxx; and
(g) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Credit Parties may make regularly scheduled payments of interest in respect of any subordinated Indebtedness permitted under Section 6.1 in accordance with the terms of, and only to the extent required by, and subject to any subordination provisions contained in, the indenture or other agreement pursuant to which such Indebtedness was issued.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (AbitibiBowater Inc.)
Restricted Junior Payments. The Borrower will notDeclare, and will not permit order, pay, make or set apart any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that except:
(a) each Subsidiary of Company may make Restricted Junior Payments to Company and to Subsidiaries of Company and, in the Borrower or case of a Restricted Junior Payment by a non-wholly owned Subsidiary, to Company and any Subsidiary may declare and pay dividends, and make to each other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, owner of Securities of such Subsidiary based on their relative ownership interests;
(b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower Company and its Subsidiaries may make regularly scheduled payments of interest in respect of Subordinated Indebtedness, in each case in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the 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 Section 6.11;
(c) Company may make Restricted Junior PaymentsPayments to Holdings to permit the payment of Management Fees; provided that, not exceeding $100,000,000 at the time of such Restricted Junior Payment and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing under Section 8.1(a), 8.1(f) and 8.1(g); provided, further that in the event such payment is prohibited by the preceding proviso, such Management Fees shall continue to accrue and all accrued but unpaid amounts shall be payable following the waiver of any such Event of Default;
(d) Company may make Restricted Junior Payments to Holdings, the proceeds of which will be used (i) to permit Holdings to pay (or to make a Restricted Junior Payment to Parent to enable it to pay) ordinary operating expenses (including, without limitation, directors' fees, indemnification obligations, professional fees and expenses) in an aggregate for amount not to exceed $2,000,000 in any Fiscal Year, ; (dii) by Holdings to pay (or to make a Restricted Junior Payment to Parent to enable it to pay) its tax liability for the Borrower may redeem or otherwise cancel Equity Interests or rights relevant jurisdiction(s) in respect thereof granted of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of Holdings or Parent, as applicable, determined as if Company and its Subsidiaries filed separate returns; and (iii) by Holdings to pay its (or to make a Restricted Junior Payment to Parent to enable it to pay its) franchise or similar taxes;
(e) Company may make Restricted Junior Payments to Holdings (and Holdings may make Restricted Junior Payments to Parent) to the extent required for Holdings to repurchase its capital stock from deceased or retired employees and from employees whose employment with Parent or any of its Subsidiaries has terminated for any other reason but only to the extent mandatorily required by the Internal Revenue Code or ERISA;
(f) Company may make Restricted Junior Payments to Holdings to permit Holdings to repurchase its securities (or to make a Restricted Junior Payment to Parent to enable it to repurchase its Securities) from directors, officers, employees or other providers members of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vestingmanagement of Parent or any Subsidiary (or their estate, settlement family members, spouse or exercise of such Equity Interests or rightsformer spouse); provided, and may issue common Equity Interests to settle rights in respect of Equity Interests, and that (ei) the Borrower may make additional cash Restricted Junior Payments so long as at the time of such Restricted Junior Payment and immediately after giving effect to each such Restricted Junior Paymentthereto, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the sum aggregate amount of Restricted Junior Payments made pursuant to this clause (f) in any Fiscal Year shall not exceed $3,000,000 plus the proceeds of any key-man life insurance maintained by Parent or its Subsidiaries and the proceeds of any sale of Securities to directors, officers, employees or members of management of Parent or any Subsidiary; provided, that Company may carry-over and make in any subsequent Fiscal Year or years, in addition to the amount for such Fiscal Year, the amount not utilized in the prior Fiscal Year or years up to a maximum of $12,000,000; provided, further that in the event Company or Holdings are not permitted to not make such Restricted Junior Payments in cash pursuant to this clause (f), Company may issue to Holdings (and Holdings may issue to Parent and Parent may issue to the holder of such Securities), as consideration for such repurchase, either (a) a promissory note payable to the holder of such Securities or (b) preferred equity Securities (which if issued by Holdings, such preferred stock shall otherwise be permitted by Section 6.11(c)), in each case for the balance of any repurchase price which is not permitted to be paid in cash, it being understood that no payment in cash may be permitted to be made by Company to Holdings (and by Holdings to Parent) in respect of any such promissory note or preferred equity Securities unless and until cash payments are again permitted pursuant to this Section 6.5(f);
(g) Company may make Restricted Junior Payments in respect of any repurchase, redemption or repayment of the amount Senior Subordinated Notes; provided, that (X) at the time of such Restricted Junior Payment and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing, and (Y) the aggregate amount of all prior such Restricted Junior Payments made in reliance on pursuant to this clause (eg) shall not exceed $20,000,000;
(h) Company may make Restricted Junior Payments to Holdings in order to allow Holdings to make cash payments of interest with respect to the Holdco Notes so long as (X) after giving effect to such Restricted Junior Payment, Company's minimum interest coverage ratio is, on a Pro Forma Basis, 0.25% better than the minimum interest coverage ratio then required to be maintained pursuant to Section 6.6(a) and (Y) at the time of such Restricted Junior Payment and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing;
(i) Company may make Restricted Junior Payments to Holdings to finance any Investment by Holdings to the extent permitted to be made pursuant to Section 6.3; provided, that such Restricted Junior Payment shall be made concurrently with the closing of such Investment;
(j) to the extent they constitute Restricted Junior Payments, Company and its Subsidiaries may enter into the transactions contemplated by Sections 6.7 and 6.10;
(k) Holdings and its Subsidiaries may make repurchases of Securities deemed to occur upon the non-cash exercise of stock options and warrants;
(l) [Reserved];
(m) Restricted Junior Payments to Holdings (and by Holdings to Parent), the proceeds of which will be used to make cash payments in lieu of issuing fractional shares of Holdings (or Parent) in an aggregate amount not to exceed $50,000;
(n) so long as no Default or Event of Default shall have occurred and be continuing or would be caused thereby, Company may make additional Restricted Junior Payments to Holdings, the proceeds of which may be utilized by Holdings to make additional Restricted Junior Payments, in an aggregate not to exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed the period (taken as one accounting period) from the beginning of the first Fiscal Years Quarter commencing after the Closing Date to the end of most recently ended Fiscal Quarter for which the internal consolidated financial statements required by of Company are available at the time of such Restricted Junior Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit) less the amount of any Restricted Junior Payments previously made pursuant to this Section 5.01(b6.5(n); provided, that notwithstanding the foregoing, until such time as the Leverage Ratio determined on a Pro Forma Basis is less than 5.00:1.00 at any date of determination, all such Restricted Junior Payments shall accumulate, but shall not be payable or paid;
(o) in addition to the foregoing, Restricted Junior Payments, so long as no Default or Event of Default shall have been deliveredoccurred and be continuing or be caused thereby, commencing Holdings may make additional Restricted Junior Payments with the Fiscal Year ending December 31proceeds of (y) the Holdco Notes less, 2012any proceeds of such Indebtedness that are applied to make Investments permitted pursuant to Section 6.3 and (z) with the proceeds of any issuances of Securities not required to prepay the Loans pursuant to Section 2.13(b) (other than Permitted Cure Securities) or used to make Investments; and
(p) in the event that the net proceeds of the Parent IPO are at least $125,000,000, taken as a single accounting period and Company may make Restricted Junior Payments funded with such net proceeds in respect of either (i) any repurchase, redemption or repayment of the Senior Subordinated Notes, (ii) any repayment of the Senior Unsecured Term Loans and/or (iii) any repurchase, redemption or repayment of any Holdco Notes; and Any Restricted Junior Payments by Company to Holdings permitted under this Section 6.5 shall be applied by Holdings for the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, purposes specified in the case of clause (ii), reasonably detailed calculations in support thereofthis Section 6.5.
Appears in 1 contract
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Restricted Subsidiaries through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that that:
(a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary of Borrower may declare and pay dividends or make other distributions with respect ratably to its Equity Interests ratably to the holders of such Equity Interests, equity holders;
(b) [Reserved;]
(c) the [Reserved;]
(d) [Reserved;]
(e) after a Qualified IPO, Borrower and its Subsidiaries may make Restricted Junior Payments, Payments to its equity holders or the equity holders of any direct or indirect parent company of Borrower in an aggregate amount not exceeding $100,000,000 in 6.5% per annum of the aggregate for any Fiscal Year, (d) Net Equity Proceeds received by Borrower from such Qualified IPO; provided that upon the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers date of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise distribution of such Equity Interests or rightsdividend, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(f) so long as (i) no Event of Default shall then be continuing or would result therefrom and (ii) on a pro forma basis, after giving effect thereto, the sum Total Leverage Ratio as of the amount such last day of the then most recently ended Fiscal Quarter for which Financial Statements have been delivered pursuant to Section 5.1 would not exceed 4.50:1.0, payments from Retained Excess Cash Flow;
(g) so long as (i) no Event of Default shall have occurred and then be continuing or would result therefrom and (ii) on a pro forma basis, after giving effect thereto, the Total Leverage Ratio as of the last day of the then most recently ended Fiscal Quarter for which Financial Statements have been delivered pursuant to Section 5.1 would not exceed 4.50:1.0, the making of any Restricted Junior Payment and in exchange for, or out of or with the net cash proceeds of the sale (other than to a Subsidiary of Borrower), Equity Interests of Borrower (other than Disqualified Equity Interests), or from the contribution of common equity capital to Borrower, the proceeds of the exercise or warrants, options or other similar instruments or the conversion of debt or Disqualified Equity Interests to common equity, in all cases after the date hereof, other than the proceeds of equity contributions made pursuant to Section 8.2, in each case so long as such proceeds have not been used for any other purpose; provided that such payment is substantially contemporaneously with the receipt of such proceeds;
(h) the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of Borrower or any Guarantor that is contractually subordinated to the Loans or to any guarantee with respect to the Loans with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(i) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Borrower or any Restricted Subsidiary held by any current or former officer, director or employee of Borrower or any of its Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided that the aggregate amount of price paid for all prior Restricted Junior Payments made in reliance on this clause (e) shall such repurchased, redeemed, acquired or retired Equity Interests may not exceed $3,300,000 in any calendar year (with 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and unused amounts in any calendar year being carried over to succeeding calendar years);
(iiij) the Borrower shall have delivered repurchase of Equity Interests deemed to occur upon the exercise of stock options to the Administrative Agent extent such Equity Interests represent a certificate portion of the chief financial officer exercise price of those stock options;
(k) payments of cash, dividends, distributions, advances or other Restricted Junior Payments by Borrower or any of its Restricted Subsidiaries to allow the payment of cash in lieu of the Borrower demonstrating compliance with clauses issuance of fractional shares upon (i) and the exercise of options or warrants or (ii) abovethe conversion or exchange of Equity Interests of any such Person;
(l) the redemption, together withrepurchase or repayment of any Equity Interests of Borrower or any Restricted Subsidiary or any direct or indirect parent of Borrower, if required by any Gaming Authority or if determined in the case good faith judgment of clause the board of directors, to be necessary to prevent the loss or to secure the grant or reinstatement of any Gaming License; and
(ii)m) so long as no Default or Event of Default has occurred and is continuing, reasonably detailed calculations since the date hereof, other Restricted Junior Payments in support thereofan aggregate amount not to exceed $8,500,000.
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (American Casino & Entertainment Properties LLC)
Restricted Junior Payments. The Borrower Holding and Company will not, and will not permit any Domestic Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum (excluding any foreign law requirement to maintain a statutory reserve or the like) for any Restricted Junior Payment, or incur any obligation Payment except:
(contingent or otherwisei) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary Company may declare and pay dividends or otherwise make other distributions with respect distributions, loans or advances to its Equity Interests ratably to the holders of such Equity InterestsHolding, (c) the Borrower and its Subsidiaries Holding may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem declare and pay dividends or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights make distributions in respect of Equity Interestsits stock or repurchase any of its outstanding stock, in an aggregate amount not to exceed $12,000,000 plus 25% of Consolidated Net Income earned from February 24, 1995; provided, however, nothing contained herein shall prohibit Holding from paying any dividend or making any distribution in respect of its stock required or permitted by the terms of Holding's Rights Agreement, dated as of May 19, 1994 and amended as of November 15, 1994, between Holding and Chemical Bank, as Rights Agent, and the Series A Junior Participating Preferred Stock issuable upon the exercise of any preferred share purchase right, as said Rights Agreement and Series A Junior Participating Preferred Stock may be supplemented from time to time;
(eii) In addition to clause (i) above of this subsection 6.5, Company may declare and pay dividends or otherwise make distributions, loans or advances to Holding of up to an aggregate amount of $6,000,000 to permit Holding to purchase or cancel any stock options or settle any stock appreciation rights held by, or distribute any amounts under any deferred compensation plan or arrangement in respect of, any employee or director of Holding or any of its Subsidiaries upon termination of employment or other service, or to purchase any of its stock held by any such employee or director;
(iii) Company may declare and pay dividends or otherwise make distributions, loans or advances to Holding in amounts sufficient to cover reasonable and necessary expenses incurred by Holding in connection with registration, public offerings and exchange listing of equity securities;
(iv) Company may declare and pay dividends or otherwise make distributions, loans or advances to Holding in amounts sufficient to pay tax liabilities of Holding;
(v) Company may declare and pay dividends or otherwise make distributions, loans or advances to Holding in amounts sufficient to allow Holding to pay other business and operating expenses incurred in the Borrower ordinary course of business;
(vi) Company may make additional (a) payments (including prepayments) on Existing Seller Notes and (b) payments of amounts due under the Non-Competition Agreements; and
(vii) Company may declare and pay dividends or otherwise make distributions, loans or advances to Holding in amounts sufficient to pay the cash Restricted Junior Payments so long as at the time consideration of any Permitted Acquisition by Holding; PROVIDED, HOWEVER, that immediately prior to and immediately after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the sum of the amount such any Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required permitted by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of this subsection 6.5 and clause (ii)vi) of this subsection 6.5 relating to voluntary prepayments on Existing Seller Notes, reasonably detailed calculations in support thereofno Event of Default or Potential Event of Default exists. Holding and Company will not, nor will they permit any of Material Domestic Subsidiary to, deposit any funds for the purpose of making any Restricted Junior Payment with a trustee, paying agent or registrar or other payment intermediary more than three Business Days prior to the date such payment is due.
Appears in 1 contract
Restricted Junior Payments. The Borrower will not, and will not permit or cause any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment except that:
(a) the Borrower may (i) make Restricted Payments payable solely in the form of common stock or other common Capital Stock and (ii) purchase, redeem, retire, defease or otherwise acquire shares of its Capital Stock (other than Disqualified Capital Stock that is not otherwise permitted by this Agreement) with the proceeds received contemporaneously from the issue of new shares of its Capital Stock (other than Disqualified Capital Stock that is not otherwise permitted by this Agreement);
(b) each Subsidiary of the Borrower may make Restricted Payments (i) ratably to its equity holders and (ii) to the Borrower or any other Subsidiary;
(c) a Credit Party may make Tax Distributions;
(d) the Borrower may make additional Restricted Junior Payments so long as no Default or Event of Default shall have occurred and be continuing, or would result therefrom, and so long as (x) in the case of Restricted Payments, (A) when determined as of the date of declaration thereof, immediately after giving effect to any such Restricted Payment, the Total Leverage Ratio as of the last day of the most recently ended Test Period, calculated on a Pro Forma Basis as of such date, does not exceed 2.75:1.00 and (B) immediately after giving effect to any such Restricted Payment, the Borrower shall be in compliance with the Financial Covenants calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period or (y) in the case of Restricted Debt Payments, (A) when determined as of the date of giving irrevocable notice (which may be conditional) in respect thereof, immediately after giving effect to any such Restricted Debt Payment, the Total Leverage Ratio as of the last day of the most recently ended Test Period, calculated on a Pro Forma Basis as of such date, does not exceed 2.75:1.00 and (B) immediately after giving effect to any such Restricted Debt Payment, the Borrower shall be in compliance with the Financial Covenants calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period;
(e) the Borrower and any of its Subsidiaries may make Restricted Payments in Cash to Holdings or any Intermediate Parent to pay, or the proceeds of which are applied by Holdings or such Intermediate Parent to pay, cash dividends and distributions to Holdings or any Intermediate Parent (i) to the extent necessary to permit Holdings or such Intermediate Parent to pay legal, accounting and reporting expenses, (ii) to the extent necessary to permit Holdings or such Intermediate Parent to pay general administrative costs and expenses and to pay reasonable and customary directors fees and expenses, (iii) to the extent necessary to permit Holdings or such Intermediate Parent to pay franchise fees or similar taxes and fees required to maintain its organizational existence or privilege of doing business, (iv) to the extent necessary to pay (x) fees and expenses related to debt or equity offerings, investments or acquisitions (whether or not consummated), in each case, permitted under this Agreement and (y) after the consummation of an initial public offering or issuance of public debt securities, Public Company Costs, (v) for the payment of insurance premiums relating to the ownership or operations of Holdings or any Intermediate Parent and (vi) so long as no Event of Default shall have occurred or be continuing, to repurchase, redeem, retire or otherwise acquire Capital Stock owned by any Person including any future, present or former employees, officers, directors, members of management, managers or consultants (or any immediate family member, domestic partner, executor, administrator, heir, legatee, estate or tax planning vehicle or permitted transferee of the foregoing) (to the extent the purchase price exceeds the amount of outstanding advances made to such individuals in connection with the purchase of Capital Stock) in an aggregate amount not to exceed, in any fiscal year, the greater of (A) $10,000,000 and (B) 10.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis); provided that, with respect to clause (vi), any unused portion for any fiscal year may be carried forward to succeeding fiscal years;
(f) to the extent constituting a Restricted Junior Payment, or incur the Borrower and any obligation Subsidiary may consummate any transaction permitted by Section 8.01 and Section 8.05 (contingent or otherwise) to do so, except that other than Section 8.05(p));
(ag) the Borrower or any Subsidiary may declare and pay dividends, and otherwise make other distributions, with respect to its Equity Interests payable solely any Restricted Junior Payments in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably an aggregate amount equal to the holders portion, if any, of the Available Amount on the date of such Equity Interests, (c) election that the Borrower and its Subsidiaries elects to apply this Section 8.06(g); provided that as of the date of declaration thereof or giving irrevocable notice (which may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (dbe conditional) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each any such Restricted Junior Payment, (ix) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (y) immediately after giving effect to any such Restricted Junior Payment, the Borrower shall be in compliance with the Financial Covenants calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period;
(h) the Borrower may make Restricted Payments in Cash to Holdings the proceeds of which shall be used to make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of Holdings or its Subsidiaries; provided that any such cash payment shall not be for the purpose of evading the limitations set forth in this Section 8.06 (as determined in good faith by the Borrower or a Subsidiary of the Borrower);
(i) the Borrower or any of its Subsidiaries may (i) make regularly scheduled payments of interest and fees, expenses and indemnification obligations in respect of any Subordinated Debt in accordance with the terms of, and to the extent permitted by, any subordination provisions contained in, the indenture or other agreement pursuant to which such Indebtedness was issued, (ii) purchase, defease, redeem, repurchase or otherwise acquire or retire any Subordinated Debt in connection with any modification, exchange, refinancing, refunding, renewal, extension, or replacement, thereof permitted under Section 8.02 and (iii) make payments of interest in respect of any Subordinated Debt in the form of payments in kind, accretion or similar payments;
(j) the Borrower or any of its Subsidiaries may make Restricted Debt Payments with respect to intercompany Indebtedness between the Borrower and its Subsidiaries permitted under Section 8.02, subject to the subordination provisions applicable thereto which subordination provisions are reasonably acceptable to the Administrative Agent; and
(k) the Borrower may make Restricted Payments to Holdings (or any Intermediate Parent) to finance any Investment permitted to be made pursuant to Section 8.05 as if such Investment were made by the Borrower or any of its Subsidiaries; provided that (i) such Restricted Payments shall be made substantially concurrently with the closing of such Investment and (ii) Holdings (or such Intermediate Parent) shall, promptly following the sum closing thereof, cause (A) all property acquired (whether assets or Capital Stock) to be contributed as equity to the Borrower or a Subsidiary thereof or (B) the merger, consolidation or amalgamation (to the extent permitted hereunder) of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) Person formed or acquired into the Borrower shall have delivered or a Subsidiary thereof in order to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofconsummate such Investment.
Appears in 1 contract
Samples: Credit Agreement (Blue Bird Corp)
Restricted Junior Payments. The Borrower will notDirectly or indirectly declare, and will not permit order, pay, make or set apart any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do soexcept that, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and or would result therefrom (ii) other than in the sum case of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered pursuant to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (iB)(iv) and (iiB)(vi) abovebelow, together withwhich may be made whether or not a Default or Event of Default shall have occurred and is continuing or would result therefrom), a Loan Party (other than CC except in the case of clause (vii) below) may make Restricted Junior Payments (A) to effect the Senior Note Prepayment so long as (i) immediately after giving effect to the Senior Note Prepayment, there shall be Unused Availability equal to the sum of (w) $10,000,000 plus (x) the tax expense of CC and its Subsidiaries related to any non-recurring gain arising from such Senior Note Prepayment plus (y) accrued and unpaid interest (other than interest payable in kind) on the Senior Notes and Senior PIK Notes, (ii)) the total cost of such Senior Note Prepayment, reasonably detailed calculations including such tax expenses and all other costs and expenses paid or incurred in support thereofconnection with such Senior Note Prepayment shall not exceed $16,500,000, and (iii) the Senior Note Prepayment shall comply with all applicable laws and the terms of all agreements (including the Senior Notes Indenture and Senior Debentures Indenture) to which CC or any of its Subsidiaries is a party or by which any of them is bound; and (B) with respect to its common stock to the extent necessary (i) to permit Borrowers to pay the Obligations; (ii) to permit COI to make scheduled payments (but not prepayments) of interest in cash then due under and pursuant to the Senior Notes; (iii) to permit CC to make scheduled payments (but not prepayments) of interest in cash then due under and pursuant to the Senior PIK Notes; (iv) to permit CC to make payments in cash directly related to compliance by it with laws and regulations applicable to it by virtue of its status as a publicly-held corporation; (v) to permit CC and/or COI to make optional prepayments or purchases of the Senior Notes and/or Senior PIK Notes, and related payments of interest and reasonable fees, costs and expenses related thereto, but only to the extent of and directly out of the proceeds of the concurrent consummation of an issuance by CC for cash of its common stock, or options, warrants or rights with respect to its common stock; (vi) to permit CC and COI to make payments in cash in respect of Corporate Overhead; (vii) to permit CC to pay dividends in respect of (but not to effect any redemption or purchase of) its outstanding shares of Series F preferred stock, in an amount not in excess of $25,000 in any Fiscal Year; and (viii) to permit any Borrower to pay expenses incurred in the ordinary course of business.
Appears in 1 contract
Samples: Loan and Security Agreement (Comforce Operating Co)
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries (other than any Non-Recourse Subsidiary) through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do soexcept that, except that without duplication:
(a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary of Holdings may declare and pay dividends or make other distributions with respect ratably to its Equity Interests ratably to the holders of such Equity Interests, equity holders;
(b) [Reserved];
(c) the Borrower and its Subsidiaries Holdings may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for Payments to its equity holders; provided that (i) immediately prior to any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of Payment and after giving effect to each such Restricted Junior Paymentthereto, (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (ii) the sum immediately after giving effect to such Restricted Junior Payment, Borrower shall be in compliance on a pro forma basis with a minimum Interest Coverage Ratio (computed as of the last day of the most recently ended Fiscal Quarter) of 1.75:1.00;
(d) Borrower and Holdings may make Permitted Tax Distributions;
(e) to the extent any cash payment and/or delivery of Parent’s common stock (or other securities or property following a merger event or other change of the common stock of Parent) by Holdings or Borrower in satisfaction of its exchange obligation or obligations to purchase notes for cash under any Permitted Exchangeable Bond Indebtedness constitutes a Restricted Junior Payment, Holdings and/or Borrower may make such Restricted Junior Payments;
(f) Holdings and/or Borrower may settle or terminate any Permitted Warrant Transaction (including by set-off or netting, if applicable); provided that, in the case where Holdings and/or Borrower voluntarily elects to satisfy its exercise or settlement or termination obligations under any Permitted Warrant Transaction in cash, after giving effect to any such cash payment (with the effect of any such cash payment determined after also giving effect to the satisfaction of any related settlement obligations of any Permitted Hedge Transaction), (x) no Event of Default shall exist or result therefrom and (y) Borrower shall be in pro forma compliance with the covenant set forth in Section 6.7(b) as of the last day of the most recently ended Fiscal Quarter preceding such cash payment;
(g) Holdings and its Subsidiaries may repurchase, redeem or otherwise acquire or retire for value of any Equity Interests of Holdings or Parent held by any current or former officer, director, employee or consultant of Holdings or any of its Subsidiaries or the Parent pursuant to any equity subscription agreement, stock option agreement, restricted stock grant, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $15,000,000 in any calendar year (with unused amounts in any calendar being carried over to succeeding calendar years); provided, further, that such amount in any calendar year may be increased by an amount not to exceed the cash proceeds from (i) the sale of Equity Interests of Holdings or the Parent received by Holdings or a Subsidiary during such calendar year, in each case to members of management, directors or consultants of Holdings, any of its Subsidiaries or the Parent and (ii) key man life insurance policies received by Holdings or any of its Subsidiaries in such calendar year;
(h) Holdings may make Restricted Junior Payments to its equity holders in respect of (i) fees and expenses (including franchise or similar taxes) required to maintain their respective corporate existence, customary salary, bonus and other benefits payable to officers and employees and general corporate overhead expenses, to the extent such fees and expenses are attributable to the ownership or operation of Holdings and its Subsidiaries, (ii) legal, accounting or other fees and expenses relating to any unsuccessful equity or debt offering or bank financing by Holdings or any of its Subsidiaries and (iii) any other out-of-pocket costs and expenses incurred in connection with management, consulting and advisory services;
(i) Holdings may make Restricted Junior Payments to its equity holders in an aggregate amount not in excess of the Available Equity Amount at the time such Restricted Junior Payments are made; provided that immediately prior to any such Restricted Junior Payment and the aggregate amount after giving effect thereto, no Event of all prior Default shall have occurred and be continuing or would result therefrom; and
(j) Holdings may make Restricted Junior Payments to its equity holders on the Closing Date in an aggregate amount not to exceed $288,284,000; provided that no portion of such Restricted Junior Payment may be made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofany Cumulative CFADS.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (TerraForm Power, Inc.)
Restricted Junior Payments. The Borrower will not, and will Stellex Parties shall not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in except:
(i) dividends and other distributions made by any Stellex Party (other than the aggregate for any Fiscal Year, (dBorrower) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower or another Loan Party;
(ii) payments of interest on the Subordinated Notes or the other subordinated indebtedness permitted pursuant to Section 9.01(x) or Section 9.01(xi) or scheduled payments of principal and interest on subordinated indebtedness incurred pursuant to Section 9.01(xiii), provided that such payments of interests are made in accordance with the Subsidiaries in an amount required provisions of the Subordinated Note Indenture or such subordinated indebtedness;
(iii) Restricted Junior Payments made to satisfy tax withholding obligations related a Management Equity Holder pursuant to the vesting, settlement Management Promissory Notes or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of purchase Management Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have has occurred and be is continuing and (ii) or would occur after giving effect to the sum making of the amount such Restricted Junior Payment and Payment; provided that (a) the aggregate amount of all prior such Restricted Junior Payments does not exceed $1,500,000 during any Fiscal Year; provided, further, that, with respect to any Fiscal Year after December 31, 2000, (A) if the Leverage Ratio for the Borrower and its Subsidiaries on a consolidated basis as of the last day of the immediately preceding Fiscal Year is less than 4.0 to 1.0, then the aggregate amount of such Restricted Junior Payments that may be made during such Fiscal Year shall not exceed $3,500,000 and (B) if the Leverage Ratio for the Borrower and its Subsidiaries on a consolidated basis as of the last day of the immediately preceding Fiscal Year is less than 3.5 to 1.0, then the aggregate amount of such Restricted Junior Payments that may be made during such Fiscal Year shall not exceed $5,000,000;
(iv) Restricted Junior Payments made by the issuance of Management Promissory Notes in reliance on this clause exchange for Management Equity Interests, in an aggregate amount not to exceed the value (ecalculated in accordance with the respective agreements pursuant to which such Management Equity Interests were issued or exchanged) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which Management Equity Interests exchanged so long as no Default or Event of Default has occurred and is continuing at the financial statements required by Section 5.01(b) shall have been delivered, commencing with time of such incurrence or issuance or would occur after giving effect to the Fiscal Year ending December 31, 2012, taken as a single accounting period and issuance of such Management Promissory Note; and
(iiiv) the redemption of the Preferred Stock with proceeds from the issuance by the Borrower shall have delivered of common stock or preferred stock having terms and conditions satisfactory to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofRequisite Lenders.
Appears in 1 contract
Restricted Junior Payments. The Borrower will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, Make any Restricted Junior Payment; provided, or incur any obligation (contingent or otherwise) to do sohowever, except that that, so long as it is not in contravention of law,
(a) the Borrower any direct or any indirect Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary of Parent may declare and pay dividends or make other distributions with respect to its Equity Interests ratably parent; provided, that, no Loan Party may pay dividends to the holders of such Equity Interests, a Person that is not a Loan Party,
(cb) the Borrower Parent and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel repurchase Equity Interests held by employees pursuant to any employee stock ownership plan thereof upon the termination, retirement or rights death of any such employee in respect thereof granted to directors, officers, employees or other providers of services to accordance with the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise provisions of such Equity Interests or rightsplan; provided, and may issue common Equity Interests that, as to settle rights in respect any such repurchase, each of Equity Interests, and the following conditions is satisfied: (ei) as of the Borrower may make additional cash Restricted Junior Payments so long as at date of the time of payment for such repurchase and after giving effect to each such Restricted Junior Paymentthereto, (i) no Default or Event of Default shall exist or have occurred and be continuing continuing, and (ii) the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior payments for such repurchases in any calendar year shall not exceed $500,000;
(c) [Reserved];
(d) Borrowers may make Restricted Junior Payments made to Parent, to the extent necessary to permit Parent (i) to pay general administrative costs and expenses, legal and accounting fees and other general corporate and overhead expenses incurred by Parent in reliance on this clause the ordinary course of business, (ii) pay franchise taxes and other taxes or fees required in each case to maintain its corporate existence, (iii) pay taxes which are due and payable by Parent as part of a consolidated group or due to ownership of any interests in Subsidiaries that are not treated as corporations for applicable tax purposes, in each case, to the extent such taxes are attributable to the Loan Parties, (iv) pay auditing fees and expenses, (iv) pay directors fees, expenses and indemnities owing to directors of Parent and (v) pay fees and expenses incurred in connection with a public offering;
(e) shall not exceed 50% any Subsidiary of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(bParent may make Restricted Junior Payments to any Loan Party; and
(f) shall have been delivered, commencing any Subsidiary may make regularly scheduled payments of interest in respect of any Permitted Seller Notes in accordance with the Fiscal Year ending December 31terms of, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered only to the Administrative extent permitted by, the subordination agreement between Agent a certificate and the holder of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofsuch Permitted Seller Note.
Appears in 1 contract
Samples: Credit Agreement (Tronox Inc)
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that Credit Parties and their Subsidiaries may (ai) make Restricted Junior Payments to Parent Entity to the extent necessary to permit Parent Entity to pay general administrative and corporate costs and expenses (and to consummate transactions by Parent Entity otherwise permitted herein); provided that, prior to the occurrence of an IPO, such Restricted Junior Payments made under this clause (i) shall not exceed an aggregate amount of $2,500,000 in any Fiscal Year; (ii) make Restricted Junior Payments to Parent Entity to the extent necessary to permit Parent Entity to discharge the consolidated tax liabilities of Parent Entity and its Subsidiaries; (iii) prior to the consummation of the Reorganization Transactions, make Tax Distributions by Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably Holdings to the holders of such Equity Intereststheir Capital Stock; (iv) so long as (A) the Credit Parties shall have collectively received at least $50,000,000 of net proceeds from an IPO, (cB) no Default shall have occurred and be continuing or shall be caused thereby, and (C) at any time after the Borrower date on which financial statements with respect to the period ending December 31, 2010 are available under Section 5.1, Parent Entity shall be in pro forma compliance with each of the covenants set forth in Sections 6.8(a) and (b) as of the last day of the most recently ended Fiscal Quarter for which financial statements are available under Section 5.1 (solely to the extent that such Fiscal Quarter was not an Exempt Fiscal Quarter) after giving effect thereto, make Restricted Junior Payments to Public Parent such that Public Parent may make (and Public Parent shall be permitted to make) payments to the applicable parties to the TRA in the amounts required to be made by it on an annual basis, pursuant to the TRA (such annual amounts not to be increased in the event that an “Early Termination Payment” (as defined in the TRA) is due); (v) redeem or purchase any Capital Stock of Parent Entity and its Subsidiaries may make Restricted Junior Paymentsin exchange for, not exceeding $100,000,000 in or out of the aggregate for any Fiscal Yearproceeds of the issuance and sale of, Capital Stock; (dvi) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, repurchase Capital Stock of Parent Entity and its Subsidiaries deemed to occur upon the exercise of stock options if the Capital Stock represents the exercise price thereof; (iivii) pay dividends in the form of common Capital Stock; (viii) redeem Subordinated Indebtedness of any Credit Party or any of its Subsidiaries in exchange for, or out of the proceeds of the incurrence of, Subordinated Indebtedness permitted to be incurred under Section 6.1 or in exchange for Capital Stock; (ix) so long as no Event of Default shall have occurred and be continuing or shall be caused thereby, redeem Capital Stock of Parent Entity held by employees, officers and directors upon termination of their employment (including by death or incapacity) in an amount not to exceed $1,000,000 in any Fiscal Year; (x) subject to Section 6.20, make Restricted Junior Payments in connection with the consummation of the Reorganization Transactions; (xi) make dividends and distributions to any JV Investor, provided that (1) the sum percentage of the amount of any such dividend or distribution paid to a JV Investor shall not be more than the aggregate pro rata percentage ownership of such JV Investor in the applicable Joint Venture and (2) each Credit Party and/or Subsidiary of any Credit Party that has an ownership interest in such Joint Venture shall receive no less than the percentage of the amount of such dividend or distribution than its aggregate pro rata percentage ownership of such Joint Venture; (xii) make scheduled payments of principal, and interest payments with respect to Subordinated Indebtedness in accordance with the subordination provisions applicable to such Subordinated Indebtedness; and (xiii) voluntarily repurchase or redeem Senior Unsecured Notes using solely proceeds from an IPO and/or from any other sales of, or capital contributions made with respect to, Capital Stock of Parent Entity in exchange for Cash proceeds, and in the case of clauses (i), (ii), (v), (vi) and (ix) above, so long as the applicable Credit Party applies the amount of any such Restricted Junior Payment and for such purpose. The payment of any management or similar fee to Sponsors or the aggregate amount of all prior Equity Investors shall be permitted under this Section 6.5 to the extent such payment is also permitted under Section 6.12. Notwithstanding the foregoing, the Credit Parties shall not make any Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered respect to the Administrative Agent a certificate Earnout Amounts and the Seller Notes unless the making of such payments is permitted by the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) aboveapplicable subordination provisions governing such Earnout Amounts or Seller Notes, together with, in the case of clause (ii), reasonably detailed calculations in support thereofas applicable.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Aurora Diagnostics Holdings LLC)
Restricted Junior Payments. The Borrower will not, and nor will not it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, pay or make any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that Payment except:
(a) (i) payments to any member, partner or Parent of the Borrower or Affiliate thereof constituting Tax Payments and payments as are needed to pay any amounts owed under any customary tax sharing agreement or customary tax receivable agreement entered into in connection with a Permitted Tax Reorganization or a Permitted IPO Reorganization; and (ii) payments to any Parent of the Borrower or Affiliate thereof (A) to the extent necessary to permit such Parent or Affiliate to pay operating costs and expenses (including, following the consummation of a Qualifying IPO, Public Company Costs) of such Parent that does not own any Subsidiaries other than the Borrower, any Subsidiary may declare and pay dividendsany other Parent of the Borrower incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and make other distributionssimilar expenses provided by third parties), with respect in each case which are reasonable and customary and incurred in the ordinary course of business, attributable to its Equity Interests payable solely in additional Equity Intereststhe ownership or operations of the Borrower and the Subsidiaries, (bB) the proceeds of which shall be used to pay costs, fees and expenses (other than to Affiliates) related to any Subsidiary may declare successful or unsuccessful equity or debt offering permitted by this Agreement, (C) the proceeds of which shall be used to pay customary salary, bonus and pay dividends or make other distributions with respect benefits payable to its Equity Interests ratably officers and employees of such Parent to the holders 148797484_8155722702_14 extent such salaries, bonuses and other benefits are attributable to the ownership or operation of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior PaymentsSubsidiaries, not exceeding $100,000,000 in or (D) the proceeds of which shall be used to pay franchise taxes and other fees, Taxes and expenses required to maintain any of such Parent’s or Affiliate’s corporate or legal existence; provided that (x) the aggregate for payments pursuant to clause (a)(i) in respect of any taxable year shall not exceed the amount of Tax Payments that would have been payable as Tax Payments in respect of such taxable year had such Permitted Reorganization or a Permitted IPO Reorganization not occurred, and (y) the aggregate payments pursuant to clause (a)(ii) in any Fiscal Year, Year shall not exceed the greater of (d1) $6,000,000 and (2) an amount equal to 6% of TTM Consolidated Adjusted EBITDA of the Borrower may redeem on a Pro Forma Basis as of the applicable date of determination;
(b) payments of (or otherwise cancel Equity Interests payments to any Parent of the Borrower to allow such Parent to pay) (i) indemnity and documented reimbursable expenses payable pursuant to any venture capital operating company management letters or in connection with board observer rights related to debt or equity financings the proceeds of which are contributed (whether in respect thereof granted to directors, officers, employees cash or other providers of services property or assets) to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the sum reasonable director fees and reasonable out-of-pocket expenses of the amount directors payable by such Restricted Junior Payment and Parent thereof; provided that the aggregate amount of all prior Restricted Junior Payments made in reliance on payments pursuant to this clause (eb) in any Fiscal Year shall not exceed 50the greater of (1) $4,000,000 and (2) an amount equal to 4% of TTM Consolidated Adjusted EBITDA of the Borrower on a Pro Forma Basis as of the applicable date of determination;
(c) (i) so long as no Event of Default has occurred and is continuing or would be caused thereby, the redemption or repurchase of (or payments to any Parent of the Borrower to enable such Parent to redeem or repurchase) Capital Stock from officers, directors, employees, advisors or consultants or their respective estates, trusts, family members or former spouses of any Credit Party or any of its Subsidiaries (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), (ii) so long as no Event of Default has occurred and is continuing or would be caused thereby, payments by the Borrower or any Subsidiary (or payments to any Parent of the Borrower to enable such Parent) to pay amounts due to officers, directors, employees, advisors or consultants or their respective estates, trusts, family members or former spouses of any Credit Party or any of its Subsidiaries (or their Affiliates) pursuant to the Borrower’s aggregate Consolidated Net Income for profit interest plans or phantom profit interest plans; provided that in all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with such cases under clauses (i) and (ii) aboveof this clause (c), together withthe aggregate amount of such payments in respect of all such Capital Stock so redeemed or repurchased or amounts due (x) prior to a Qualifying IPO does not exceed $2,000,000 (with unused amounts in any Fiscal Year rolled over to the next two following Fiscal Years) and (y) after a Qualifying IPO does not exceed the greater of (1) $3,000,000 and (2) an amount equal to 3% of TTM Consolidated Adjusted EBITDA of the Borrower on a Pro Forma Basis as of the applicable date of determination (with unused amounts in an Fiscal Year rolled over to the next two following Fiscal Years), plus (A) an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or any Subsidiary after the Closing Date, (B) the amount of net cash proceeds from the sale of Capital Stock of any Parent of the Borrower contributed to 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 (C) and the amount of any cash bonuses or other compensation otherwise payable to any future, present or former director, employee, consultant or distributor of Borrower, Subsidiary, any Parent of the Borrower that are foregone in return for the receipt of Capital Stock of any Parent of the Borrower; (iii) the cancellation of Indebtedness owing to a Credit Party from officers, directors, employees, advisors or consultants of a Credit Party or any of its Subsidiaries in connection with any repurchase of Capital Stock; and (iv) 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; provided that in all cases under clause (iii) of this clause (c), after giving effect thereto the Borrower and its Subsidiaries shall be in Pro Forma compliance with the Financial Covenants set forth in Section 6.7; 148797484_8155722702_14
(d) payments in the form of Capital Stock of any Parent of the Borrower or in the form of proceeds of Capital Stock of, or contributions by, any Parent of the Borrower (other than Disqualified Capital Stock and to the extent not otherwise used under this Agreement or applied to the Available Amount);
(e) payments to any Parent of the Borrower for 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;
(i) 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, (B) pay customary closing, consent and similar fees related to any Junior Financing, (C) make mandatory prepayments, mandatory redemptions and mandatory purchases, in each case pursuant to the case 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, (D) prepay Indebtedness (x) of the Borrower or 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, (E) 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/or with the proceeds of any sale of or contribution to the Capital Stock of the Borrower) and (F) convert any Junior Financing to Capital Stock (other than Disqualified Capital Stock) of the Borrower or any Parent of the Borrower, and (ii) after the fifth anniversary of the incurrence of any such Indebtedness, any payments necessary to prevent any such Indebtedness from being treated as “applicable high yield discount obligations” under Section 163(e)(5) or Section 163(i) of the Internal Revenue Code;
(g) the declaration and payment of any dividend or distribution by any Subsidiary on a ratable basis to its equity holders within sixty (60) days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(h) [reserved]; 148797484_8155722702_14
(i) so long as no Event of Default has occurred and is continuing or would result therefrom, Restricted Junior Payments made from the net cash proceeds received by the Borrower after the Closing Date pursuant to contributions by third parties to its common equity capital or issuances of its Capital Stock (other than Disqualified Capital Stock) or of any Parent thereof (other than Specified Equity Contributions or to the extent used under this Agreement or applied to the Available Amount) that are used substantially contemporaneously to make such Restricted Junior Payment;
(j) so long as no Event of Default has occurred and is continuing at the time of declaration thereof, the declaration and payment of dividends on the Borrower’s common stock, or common stock of any Parent of the Borrower, following the first public offering of the Borrower’s common stock or the common stock of any Parent of the Borrower after the Closing Date in an amount not to exceed per annum 6% of the net cash proceeds received by or contributed to the Borrower in or from any public offering;
(k) payments required to be made to former employees of the Borrower or any of its Subsidiaries pursuant to profit interest plans or phantom profit interest plans (in each case, as such plans are in effect on the Second Amendment Effective Date) and taxes associated therewith, in an aggregate principal amount pursuant to this clause (k) not to exceed $11,000,000;
(l) 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 Event of Default has occurred and is continuing or would result therefrom; (ii) the Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period, is less than or equal to 2.50:1.00; provided that the foregoing clause (ii)) will not apply if the Restricted Junior Payments are being made exclusively in reliance on clauses (a)(iii) and/or (a)(iv) of the definition of “Available Amount” and (iii) substantially concurrently with the making of such Restricted Junior Payment, the Borrower shall provide the Administrative Agent a reasonably detailed calculations in support thereof.calculation of the Available Amount prior to and after giving effect to such Restricted Junior Payment;
Appears in 1 contract
Restricted Junior Payments. The Borrower will not, and will not permit any Subsidiary to, declare or make, or agree to pay Declare or make, directly or indirectly, any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (ei) the Borrower may make additional cash regularly scheduled payments of interest and payments of Special Interest (as defined in the Convertible Senior Notes Indenture) in respect of the Convertible Senior Notes in accordance with the terms of, and only to the extent required by, and subject to any applicable subordination provisions contained in, the indenture or other agreement pursuant to which any such Indebtedness was issued, (ii) during any Fiscal Year, the Borrower may make Restricted Junior Payments of up to $15,000,000 plus 50% of the Borrower Net Income (or, if Borrower Net Income is negative, 100% of the Borrower Net Income) for the prior Fiscal Year so long as at as, in the time case of and after giving effect to each such any Restricted Junior PaymentPayment made pursuant to this clause (ii), (ia) no Default or Event of Default shall have occurred and be continuing at the time of such payment or exist immediately after giving effect thereto and (ii) the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iiib) the Borrower shall have delivered to the Administrative Agent a compliance certificate of the chief financial officer of the Borrower signed by an Authorized Officer demonstrating compliance with clauses 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 date; provided, however, that (iA) the Minimum Liquidity condition shall not apply to any distribution in the form of cash settlements with respect to either the Spread Overlay Agreements in accordance with the terms thereof or the early conversion of the Convertible Senior Notes in accordance with the terms thereof and (B) the Minimum Liquidity condition shall only apply to Restricted Junior Payments (other than those described in the preceding clause (A)) in excess of an aggregate amount of $15,000,000 of such Restricted Junior Payments made pursuant to this clause (ii), (iii) above, together withthe Borrower may make distributions in the form of cash settlements with respect to the early conversion of the Convertible Senior Notes so long as, in the case of any Restricted Junior Payment made pursuant to this clause (iiiii), reasonably detailed calculations (a) no Default or Event of Default shall have occurred and be continuing at the time of such payment or exist immediately after giving effect thereto and (b) 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 support 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 date and (iv) the Borrower may make distributions in the form of cash settlements with respect to the Spread Overlay Agreements in accordance with the terms thereof, and only to the extent required thereby, so long as the Borrower receives within thirty (30) days of such distribution a cash payment in connection with such cash settlement of not less than the amount of such distribution.
Appears in 1 contract
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, Payment (or incur any obligation (contingent or otherwiseenter into an agreement with respect to the foregoing) to do so, except that except
(a) so long as (i) no Default or Event of Default shall have occurred and be continuing or shall be caused thereby; (ii) Company and its Subsidiaries shall be in pro forma compliance with each of the Borrower covenants set forth in Section 6.8 as of the last day of the most recently ended Fiscal Quarter after giving effect to such Restricted Junior Payment; and (iii) the Indenture Fixed Charge Coverage Test is satisfied, then Company may make Restricted Junior Payments in an amount not to exceed the sum of:
(1) 50% of the Consolidated Net Income of Company and its Subsidiaries for the period (taken as one accounting period) from the beginning of the first Fiscal Quarter commencing prior to the date of the Senior Subordinated Note Indenture 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, less 100% of such deficit), plus
(2) 100% of the Net Equity Proceeds that Company is not required to apply to prepay the Loans as set forth in Section 2.12(c), plus
(3) the net reduction in any Investment that was made after the date of this Agreement resulting from payments of interest on Indebtedness, dividends, repayment of loans or advances, or other transfers of assets, in each case to the Company or any Subsidiaries, and the Cash return of capital with respect to any Investment (less the cost of disposition, if any);
(b) Company may make regularly scheduled payments of interest (including Special Interest (as defined in the Senior Subordinated Note Indenture)) in respect of the Senior Subordinated Notes in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the Senior Subordinated Note Indenture, as such indenture may be amended from time to time to the extent permitted under Section 6.16;
(c) any Subsidiary may declare and pay dividends, and make other distributions, payments with respect to its Equity Interests payable solely issued and outstanding Capital Stock;
(d) 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 in additional Equity Interests, connection with redemptions of Capital Stock permitted pursuant to Section 6.12(e);
(be) any Subsidiary may declare extensions, renewals, refinancings or replacements of the Senior Subordinated Notes permitted pursuant to Section 6.1(c);
(f) so long as no Default or Event of Default shall have occurred and pay dividends be continuing or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interestsshall be caused thereby, (c) the Borrower Company and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 Payments with respect to Earn-Out Obligations described in clause (c) of the aggregate for definition of Indebtedness and pay any Fiscal Year, (d) the Borrower may redeem fees and expenses paid or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower payable by Company and the its Subsidiaries in an amount required to satisfy tax withholding obligations related to connection with the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and Gains Acquisition;
(eg) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and shall be caused thereby; (ii) the sum Company and its Subsidiaries are in pro forma compliance with each of the amount covenants set forth in Section 6.8 as of the last day of most recently ended Fiscal Quarter after giving effect to such Restricted Junior Payment; and (iii) the pro forma Senior Leverage Ratio as of the last day of most recently ended Fiscal Quarter after giving effect to such Restricted Junior Payment and is less than 1.00:1.00, Restricted Junior Payments with respect to the defeasance, redemption, repurchase, repayment or other acquisition of the Senior Subordinated Notes; provided, that the aggregate amount of all prior such Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b$25,000,000; and
(h) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken so long as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) no Default or Event of Default shall have occurred and be continuing and shall be caused thereby and (ii) aboveCompany and its Subsidiaries are in pro forma compliance with each of the covenants set forth in Section 6.8 as of the last day of most recently ended Fiscal Quarter after giving effect to such Restricted Junior Payment, together with, other Restricted Junior Payments in the case of clause (ii), reasonably detailed calculations in support thereofan amount not to exceed $15,000,000.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Ipc Acquisition Corp)
Restricted Junior Payments. The Borrower Loan Parties will not, and will not permit any Restricted Subsidiary to, directly or indirectly, declare or make, or agree to pay or make, directly or indirectly, any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that except:
(ai) the any Subsidiary of Borrower (A) may pay Restricted Junior Payments to Borrower or any wholly owned Subsidiary of Borrower and (B) if such Subsidiary is not a wholly owned Subsidiary of Borrower, may declare pay Restricted Junior Payments to its shareholders generally so long as Borrower or its Subsidiary which owns the equity interest or interests in the Subsidiary paying such Restricted Junior Payments receives at least its proportionate share thereof (based upon its relative holdings of Equity Interests in the Subsidiary paying such Restricted Junior Payments and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary);
(ii) to the extent actually used by Holdings to pay dividendssuch taxes, costs and expenses, payments by Borrower to or on behalf of Holdings (A) in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of Holdings, and make (B) in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other distributionsexpenses in the nature of overhead in the ordinary course of business of Holding but in any event not to exceed $5.0 million in any Fiscal Year; and
(iii) if Borrower is a member of a group (that includes Holdings) filing a consolidated or combined federal, with respect or consolidated combined or unitary state or local tax returns to pay consolidated or combined federal, or consolidated, combined or unitary state or local taxes not payable directly by Borrower or any of its Equity Interests Subsidiaries, which payments by Borrower or its Subsidiaries are not in excess of the tax liabilities that would have been payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the by Borrower and its Subsidiaries if Borrower and its relevant Subsidiaries were filing a separate consolidated or combined return, as the case may make Restricted Junior Paymentsbe;
(iv) so long as no Event of Default has occurred and is continuing or would result therefrom, to repurchase outstanding warrants or options from employees, former employees, directors or former directors of any Loan Party or any of its Subsidiaries pursuant to stock option plans or employment agreements in an aggregate amount, when added to the aggregate principal amount of all Indebtedness incurred under Section 6.01(l) during such Fiscal Year, not exceeding to exceed $100,000,000 10.0 million in the aggregate for any Fiscal Year, ;
(dv) the repurchase of Equity Interests of Holdings, Borrower or any of its Restricted Subsidiaries to the extent deemed to occur upon the exercise of stock options, upon surrender of Equity Interests to pay the exercise price of such options;
(vi) to the extent constituting a Restricted Junior Payment, payments to General Electric or its Affiliates pursuant to the Tax Matters Agreement, dated June 21, 2002, among General Electric, GE Investments, Inc. and Global Acquisition Corporation, as in effect on the date of this Agreement;
(vii) Borrower or any of its Subsidiaries may make cash payments to repurchase, redeem or otherwise cancel acquire Equity Interests of Holdings or rights in respect thereof granted to directors, officers, employees or other providers of services Borrower issued as consideration for any Investment made after the Closing Date to the Borrower and the Subsidiaries extent that such Person would have been permitted to make such Investment in cash in an amount required equal to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as payment at the time of such cash payment under the terms of this Agreement; provided that such Investment shall thereafter be deemed to have been made in cash at the time of such cash payment for the purpose of this Agreement;
(viii) the retirement of any shares of Disqualified Stock of Borrower by conversion into, or by exchange for, shares of Disqualified Stock of Borrower, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of Borrower) of other shares of Disqualified Stock of Borrower; provided that the Disqualified Stock of Borrower that replaces the retired shares of Disqualified Stock of Borrower will not require the direct or indirect payment of any liquidation preference earlier in time than the final stated maturity of the retired shares of Disqualified Stock of Borrower;
(ix) payments to the Principals or any of their Affiliates permitted by Section 6.07(vii) including payments to Holdings to fund such payments;
(x) so long as no Event of Default has occurred and after giving effect is continuing, and subject to each a Net Leverage Ratio less than or equal to 3.25:1 on a Pro Forma Basis, the payment of dividends (A) on Borrower’s common stock (or the payment of dividends to any direct or indirect parent of Borrower to fund the payment by such direct or indirect parent of Borrower of dividends on such entity’s common stock) of up to 6% per annum of the net proceeds received by Borrower from any public offering of common stock of Borrower or any direct or indirect parent of Borrower and (B) to Holdings, the proceeds of which are used solely for the purpose of prepaying principal and accrued interest under Holdings’ 14.2% subordinated notes due October 5, 2017;
(xi) (x) the transactions contemplated by the Acquisition Agreement to occur upon consummation of the Specified Acquisition and (y) Restricted Junior Payment, Payments to Holdings to pay fees and expenses incurred in connection with the Transaction and the Specified Acquisition (inot to exceed $65 million together with payments pursuant to 6.07(x));
(xii) so long as no Default or Event of Default shall have has occurred and be continuing is continuing, and subject to compliance with the Financial Covenants on a Pro Forma Basis, other Restricted Junior Payments in an aggregate amount, not to exceed $15 million;
(iixiii) the sum payment of the amount such any Restricted Junior Payment and or the aggregate amount consummation of all prior any irrevocable redemption within 60 days after the date of declaration of the Restricted Junior Payment or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the Restricted Junior Payment or redemption payment would have complied with the provisions of this Agreement;
(xiv) the making of any Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% exchange for, or out of or with the net cash proceeds of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been deliveredsubstantially concurrent sale of, commencing with the Fiscal Year ending December 31, 2012, taken as Qualified Capital Stock of Borrower (other than Equity Interests issued or sold to a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer Subsidiary of the Borrower demonstrating compliance with clauses or an employee stock ownership plan or other trust established by the Borrower or any of its Subsidiaries for the benefit of its employees to the extent that the purchase by such plan or trust is financed by Indebtedness of such plan or trust owed to Borrower or any of its Subsidiaries or Indebtedness Guaranteed by the Borrower or any of its Subsidiaries);
(ixv) Borrower may make a Restricted Junior Payment or distribution to Holdings on or around the Closing Date solely for the purpose of prepaying principal and accrued interest under Holdings’ 14.2% subordinated notes due October 5, 2017, in an aggregate amount not to exceed $35,000,000;
(xvi) refinancings of Indebtedness to the extent permitted by Section 6.01;
(xvii) (A) prepayment of intercompany debt owed by any Loan Party or any of its Subsidiaries and (iiB) above, together withconversion of any intercompany debt of any Loan Party or any of its Subsidiaries into equity interests in a Subsidiary to the extent such investment would be permitted under Section 6.04; provided that, in the case of this clause (iiiii), reasonably detailed calculations no prepayment of intercompany debt owed by a Loan Party to any non -Loan Party and no conversion to equity of intercompany debt owed by any non-Loan Party to any Loan Party shall be permitted if an Event of Default has occurred and is continuing or would result therefrom;
(xviii) Restricted Junior Payments described in support clause (v)(A) of the definition thereof, subject to and in accordance with all subordination provisions and subordination agreements governing the subordinated debt;
(xix) Restricted Junior Payments described in clause (v)(B) of the definition thereof, provided that at the time of such payment no Event of Default has occurred and is continuing;
(xx) Permitted Post-Acquisition Restructuring Transactions; and
(xxi) Dividends to Holdings used to pay the Inovis Termination Fee and the GE Capital Raising Fees.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (GXS Investments, Inc.)
Restricted Junior Payments. The Borrower will Company and Borrowers shall not, and will shall not permit any Subsidiary of its and their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower Company and 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 Payment for such purpose; (ii) make Restricted Junior PaymentsPayments to Holdings for purchases of Common Stock of Holdings in connection with the administration of Holdings’ employee benefits program and repurchases of employee shares; (iii) make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as such indenture or other agreement may be amended from time to time to the extent not exceeding prohibited by subsection 6.12A; provided, in the case of Company’s intercompany notes to Holdings, such payments of interest shall be limited to non-cash payments on a basis consistent with past practices; (iv) make payments of intercompany indebtedness other than payments of Company’s intercompany Indebtedness to Holdings and (v) otherwise make Restricted Junior Payments to Holdings in an aggregate amount equal not to exceed (a) $100,000,000 plus (b) 50% of Consolidated Net Income of Holdings and its Subsidiaries for the period (taken as a single accounting period) from December 31, 2004 to the end of the most recent Fiscal Quarter ending at least 45 days prior to the date of such Restricted Junior Payment (or, if such Consolidated Net Income shall be a deficit, minus 100% of such deficit), and excluding items treated as balance sheet adjustments for foreign currency transactions, provided, that, the amount under this clause (b) shall never be less than zero, plus (c) an amount equal to 100% of the net Cash proceeds contributed to Company from issuances of Holdings Common Stock, Permitted Preferred Stock (or from the issuance of other convertible equity interests of Holdings or convertible debt issued by Holdings which, in the aggregate either case, have been converted into Holdings Common Stock or Permitted Preferred Stock) (excluding, however, any such equity interests or convertible debt issued to Company or its Subsidiaries and excluding any such proceeds utilized as consideration for any Fiscal Year, an Acquisition not prohibited hereunder) minus (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services an amount equal to the Borrower and aggregate amount of Investments made pursuant to subsection 6.3(xi) after the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the sum of the amount such Restricted Junior Payment and Closing Date less the aggregate amount of all prior cash dividends, distributions and other cash payments actually received by Company and its Loan Party Subsidiaries from their respective non-Loan Party Foreign Subsidiaries after the Closing Date. The provisions of this subsection 6.5 shall not be breached by the payment of any Restricted Junior Payments made in reliance on this to Holdings for the purposes of Holdings making a dividend payment under clause (ex) shall not exceed 50% of Holdings Ordinary Course Payments definition within 60 days after the declaration of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which dividend by Holdings, if at such date of declaration, the financial statements required by Section 5.01(b) shall making of such payment would not have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate in violation of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofthis subsection.
Appears in 1 contract
Restricted Junior Payments. (a) The Borrower will not, and Credit Parties will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior PaymentPayment at any time; PROVIDED, HOWEVER, that (i) any Credit Party (other than ARC) may pay dividends to a Borrower, and (ii) so long as (A) no Payment Default (as defined below) exists, (B) no Blockage Period (as defined below) shall be continuing, and (C) no Event of Default shall result from the making of such payment, ARC may pay or incur cause to be paid to Wynnchurch and any obligation (contingent or otherwise) other holders from time to do sotime of the - 52 - Wynnchurch Subordinated Notes, and Wynnchurch and any other holders from time to time of the Wynnchurch Subordinated Notes may accept and retain regularly scheduled quarterly payments of interest but no principal in respect of the Wynnchurch Subordinated Notes on the dates and in the amounts set forth in the applicable Subordinated Debt Documents; provided that in no event shall the aggregate amount of interest payments made in respect of the Wynnchurch Subordinated Notes during any calendar quarter beginning with the calendar quarter beginning January 1, 2002 and ending with the calendar quarter ending December 31, 2005 exceed 1.875% of the outstanding principal balance of the Wynnchurch Subordinated Notes without the prior written consent of the Lender, except that if (a1) the Borrower Lender has received a Compliance Certificate indicating that the Borrowers are in compliance with Section 8.10(b) for the period from January 1, 2002 through June 30, 2002 or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Intereststwo consecutive fiscal quarters following the Effective Time, (b2) any Subsidiary may declare no Payment Default exists, (3) no Blockage Period shall have commenced and pay dividends or make other distributions with respect to its Equity Interests ratably to be continuing, (4) no Event of Default shall result from the holders making of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interestspayment, and (e5) prior to such payment, the Borrower may make additional cash Restricted Junior Payments so long as at Borrowers shall have delivered evidence to the time of and Lender that after giving effect to each such Restricted Junior Paymentpayment, Excess Availability shall equal or exceed $5,000,000, the aggregate amount of interest payments made in respect of the Wynnchurch Subordinated Notes during any calendar quarter may total up to (ix) no 4.50% of the outstanding principal balance of the Wynnchurch Subordinated Notes PLUS (y) the amount of prior interest payments that were not paid in respect of the Wynnchruch Subordinated Notes as a result of the prior existence of a Payment Default or prior commencement of a Blockage Period. Notwithstanding anything to the contrary set forth herein, beginning with the calendar quarter beginning January 1, 2006, so long as no Payment Default exists, no Blockage Period shall have commenced and be continuing, and no Event of Default shall have occurred result from the making of such payment, ARC may pay or cause to be paid to Wynnchurch and be continuing any other holder of the Wynnchurch Subordinated Notes, and Wynnchurch and any other holder of the Wynnchurch Subordinated Notes may accept and retain regularly scheduled quarterly payments of interest but no principal in respect of the Wynnchurch Subordinated Notes on the dates and in the amounts provided for in the Wynnchurch Subordinated Notes (as in effect on the date hereof).
(b) In addition to the interest payments permitted under Section 8.6(a) above, so long as no Payment Default exists and no Blockage Period is continuing: (i) the Borrowers may pay reasonable directors' fees and reimburse Wynnchurch and any other holder of the Wynnchurch Subordinated Notes for reasonable costs and expenses incurred by Wynnchurch or such holder in connection with the Subordinated Indebtedness owing to Wynnchurch or such holder, and (ii) with the sum written consent of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) Lender, which consent shall not exceed 50% be unreasonably withheld or delayed, the Borrowers may retain Wynnchurch or any other holder of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which Wynnchurch Subordinated Notes to perform, and pay to Wynnchurch or such holder, fees for, advisory services at market rates.
(c) As used in this Section 8.6, the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereof.terms:
Appears in 1 contract
Samples: Credit and Security Agreement (Alternative Resources Corp)
Restricted Junior Payments. The Holding and Borrower will not, and will not permit any Subsidiary of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior PaymentPayment except:
(i) Borrower may make interest payments in respect of Existing Subordinated Notes (subject to the reduction in such notes pursuant to the satisfaction of subsection 3.1F) in accordance with the terms of the Existing Subordinated Indenture and Subordinated Notes in accordance with the terms of the Subordinated Indenture, as such documents have been approved by Agents and Requisite Lenders, and Borrower may make principal payments, including premium (if any), in respect of the redemption or incur repurchase of Existing Subordinated Notes and Subordinated Notes in an aggregate amount (measured on a cumulative basis from the Restatement Effective Date) not to exceed $15,000,000 plus accrued interest thereon; provided that the aggregate amount of such principal payments, including premium, if any, shall not exceed $5,000,000 in any obligation (contingent or otherwise) to do soFiscal Year; provided further, except that if the aggregate amount of such principal payments, including premium, if any, actually made in any Fiscal Year is less than $5,000,000, the difference between (a) the Borrower or any Subsidiary may declare amount of such principal payments, including premium, if any, actually made in such Fiscal Year and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) $5,000,000 may be carried over and made in any Subsidiary subsequent Fiscal Year;
(ii) Holding may repurchase Holding Common Stock held by members of the Management Group in accordance with the terms of the Subscription Agreements 106 and Borrower may declare and pay dividends or make other distributions with respect loans to its Equity Interests ratably to Holding for such purpose; provided that the holders aggregate amount (measured on a cumulative basis from the Restatement Effective Date) of payments for such Equity Interests, repurchases (cand dividends or loans therefor) plus the amount of principal and interest paid on the Junior Subordinated Notes shall not exceed the sum of (a) $6,000,000 plus (b) the Borrower net Cash Proceeds of any Holding Common Stock sold to members of the Management Group after the Restatement Effective Date; provided, further, that the amount of payments for such repurchases, principal and its Subsidiaries may make Restricted Junior Payments, interest shall not exceeding exceed $100,000,000 2,000,000 in the aggregate during the period from the Restatement Effective Date to the first anniversary thereof, inclusive; and
(iii) Borrower may declare and pay dividends or make intercompany loans to Holding for any the purpose of paying operating expenses of Holding arising in the ordinary course of business including, without limitation, taxes, provided that such dividends and loans shall not exceed $300,000 in the aggregate per Fiscal Year, ; and
(div) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at payments on or about the time Restatement Effective Date to holders of Existing Subordinated Notes in connection with the Refinancing on the terms and in the amounts disclosed in writing to Agents and the Lenders prior to the Restatement Effective Date; and
(v) Borrower may exchange the Subordinated Notes for registered subordinated notes with substantially identical terms and in accordance with the terms of the Registration Rights Agreement. provided that immediately prior to and immediately after giving effect to each such any Restricted Junior PaymentPayment permitted by this subsection 6.5, (i) no Default or Event of Default shall have occurred or Potential Event of Default exists or will exist. Holding and be continuing and (ii) Borrower will not, nor will they permit any of their respective Subsidiaries to, deposit any funds for the sum purpose of the amount such making any Restricted Junior Payment and with a trustee, paying agent or registrar or other payment intermediary more than three Business Days prior to the aggregate amount of all date such payment is due or 30 days prior Restricted Junior Payments made to the date such payment is due in reliance on this clause (e) shall not exceed 50% respect of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate refinancing of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofSubordinated Debt.
Appears in 1 contract
Samples: Credit Agreement (Blue Bird Corp)
Restricted Junior Payments. The Borrower will not, and Credit Parties will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior Payment, or incur Payment at any obligation (contingent or otherwise) to do sotime, except that (a) the Borrower or any Credit Party that is a Subsidiary of another Credit Party may declare and pay dividends, and make dividends to such other distributions, with respect to its Equity Interests payable solely in additional Equity InterestsCredit Party, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred exists or would result therefrom and be continuing and commencing following receipt by the Agent of the financial statements for each fiscal year commencing with the fiscal year ending April 30, 2004, the Credit Parties may, not more frequently than quarterly, make Restricted Junior Payments referred to in clauses (i), (ii) the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) of the Borrower definition of Restricted Junior Payments, subject to the condition that the Credit Parties shall have delivered to the Administrative Agent Agent, not less than 30 days prior to the making of any such Restricted Junior Payment, a certificate of demonstrating, in form and substance reasonably satisfactory to the chief financial officer of Agent, that the Borrower demonstrating compliance with conditions set forth in clauses (i), (ii), (iii) and (iv) of subsection (c) of this definition have been (and will be) satisfied, and (c) so long as no Default or Event of Default exists or would result therefrom and commencing following receipt by the Agent of the financial statements for each fiscal year commencing with the fiscal year ending April 30, 2004, the Credit Parties may, not more frequently than quarterly, make Restricted Junior Payments referred to in clauses (iv) and (v) of the definition of Restricted Junior Payments herein in an aggregate amount in any fiscal year not in excess of an amount equal to the result of (x) the amounts that constitute for each fiscal quarter of such fiscal year the RJP Permitted Percentages of the Excess Cash Flow of the Parent and its Subsidiaries in each such fiscal quarter, minus (y) the amount of any Restricted Junior Payment referred to in clauses (i), (ii) and (iii) of the definition of Restricted Junior Payments that have been or will be made in such fiscal quarter, subject to the condition that the Credit Parties shall have delivered to the Agent, not less than 30 days prior to the making of any such Restricted Junior Payment, a certificate demonstrating, in form and substance reasonably satisfactory to the Agent, that:
(i) the Credit Parties were in compliance with each of the covenants set forth in Section 8.10 for and as of the end of the fiscal quarter most recently ended immediately preceding the proposed payment date, calculated both on an actual basis and on a pro forma basis after giving effect to the proposed Restricted Junior Payment; and
(ii) Excess Availability, calculated on (i) an actual basis as at the end of the Business Day immediately preceding the date on which the Restricted Junior Payment is made with respect to the amount of the Revolving Credit Exposure and based on the most recently delivered Borrowing Base and Collateral Update Certificate with respect to the amount of the Borrowing Base, and (ii) abovea pro forma basis giving effect to the making of such Restricted Junior Payment, together withshall have been (and shall be projected to be) no less than $10,000,000;
(iii) the Parent and its Subsidiaries shall, on a consolidated basis, have cash, Cash Equivalents and Excess Availability, calculated on (i) an actual basis as of the Business Day immediately preceding the date of the Restricted Junior Payment with respect to the amount of the Revolving Credit Exposure and based on the most recently delivered Borrowing Base and Collateral Update Certificate with respect to the amount of the Borrowing Base, and (ii) a pro forma basis giving effect to the making of such payment, of not less than $18,500,000 in the case aggregate; and
(iv) as of clause (ii)the date of such certificate, reasonably detailed calculations the Credit Parties shall be generally paying their trade payables in support thereofaccordance with their terms. Amendment to Section 8.10.
Appears in 1 contract
Restricted Junior Payments. The Borrower No Credit Party will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior PaymentPayment at any time; provided, or incur any obligation (contingent or otherwise) to do sohowever, except that (a) for so long as Holdings I is an S Corporation or a substantially similar pass-through entity for federal income tax purposes and a QSSS Election is in effect for Intermediate Holdings (prior to the Intercompany Merger) and the Borrower, the Borrower or any Subsidiary may declare and pay dividendsmake dividend payments to Intermediate Holdings (or after the merger of Intermediate Holdings with and into the Borrower in accordance with Section 7.4(g), to Holdings I) in an amount (together with loans made pursuant to Section 7.5(a)(x)(1)) not in excess of the Permitted Holdings Tax Distributions and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, the Permitted Shareholder Tax Distributions; (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and no Default shall be caused thereby, the Borrower may make scheduled payments of interest on the Senior Subordinated Notes to the extent required to be paid in cash pursuant to the Senior Subordinated Note Indenture and any liquidated damages required to be paid in connection with any registration rights agreement related thereto; (c) so long as no Default shall have occurred and be continuing and no Default shall be caused thereby, at any time the Total Leverage Ratio is less than 4.5 to 1 as of the end of any fiscal year with respect thereto, as shown in the financial statements required to be delivered pursuant to Section 6.1(a) and Compliance Certificate required to be delivered in respect of such fiscal year pursuant to Section 6.1(c), the Borrower may declare and make dividend payments (together with loans made pursuant to Section 7.5(a)(x)(2)) to Intermediate Holdings (or after the merger of Intermediate Holdings with and into the Borrower in accordance with Section 7.4(g), to Holdings I or any other Holding Company, as applicable) to the extent of Excess Cash Flow for such fiscal year, provided that the aggregate amount paid pursuant to this clause (c) after the date hereof (together with the aggregate amount of loans made pursuant to Section 7.5(a)(x)(2) after the date hereof) shall not exceed $5,000,000, (d) so long as no Default shall have occurred or be continuing or shall be caused thereby the Borrower may declare and make Restricted Junior Payments to any Holding Company to pay corporate administrative expenses, provided that the amount of cash distributions made pursuant to this clause (d) (together with the amount of loans made pursuant to Section 7.5(a)(x)(3)) shall not exceed $1,000,000 in any fiscal year, (e) the Credit Parties may pay their obligations to Empire Burbank to the extent required to be paid under the Empire Burbank Lease, (f) so long as no Default shall have occurred or be continuing or shall be caused thereby, Xxxxxxxx Broadcasting, Inc., or any successor entity thereto, may make the payments described in clause (vi) of the definition of Restricted Junior Payment or make the payments with respect to any notes issued under the employment agreement described in such clause (vi), (g) so long as no Default shall have occurred or be continuing or shall be caused thereby, any Credit Party may make dividend payments to Holdings I (through another Holding Company, if applicable), to enable Holdings I to make the payments with respect to any portion of the "Incentive Bonus" which may become payable pursuant to the employment agreements of Xxxxxx Mars dated November 15, 1998 and Xxxxxx Xxxxx dated September 1, 1999, 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 7.5(a)(x)(4) shall not exceed the amount of such bonuses required to be paid under such 106 employment agreements (including any amounts required to be paid under any such notes), and (h) the Credit Parties may make payments on the Xxxxxxxx Subordinated Debt on the Closing Date in an amount not in excess of $1,920,000 and may make payments of interest on the Xxxxxxxx Subordinated Debt to the extent 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 dividend or distribution, 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 sum subsequent cancellation or forgiveness of the amount such loan shall not be treated as a Restricted Junior Payment and shall not reduce the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofsubsequent Permitted Holdings Tax Distributions or Permitted Shareholder Tax Distributions.
Appears in 1 contract
Restricted Junior Payments. The Neither the Borrower nor any Restricted Subsidiary will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that that:
(a) the Borrower or and any Restricted Subsidiary may declare and pay dividends, and make dividends or other distributions, distributions with respect to its Equity Interests payable solely in additional Equity Interests, Interests in such Person permitted hereunder;
(b) any Restricted Subsidiary may declare and pay dividends or make other distributions with respect to its capital stock, partnership or membership interests or other similar Equity Interests Interests, and declare and make other Restricted Junior Payments in respect of its Equity Interests, in each case ratably to the holders of such Equity InterestsInterests (or, if not ratably, on a basis more favorable to the Borrower and the Restricted Subsidiaries);
(c) the Borrower and may pay dividends with respect to its Subsidiaries may make Restricted Junior Paymentscommon stock within 60 days after the declaration of such dividend; provided that at the date of such declaration, not exceeding $100,000,000 in such payment would have complied with this Section 6.4 (it being understood that any dividends paid pursuant to this clause (c) shall be deemed for purposes of determining availability under the aggregate for any Fiscal Yearapplicable clause under this Section 6.4, to have been paid under such clause);
(d) the Borrower may redeem make payments in respect of, or otherwise cancel repurchases of its Equity Interests or deemed to occur upon the “cashless exercise” of, stock options, stock purchase rights, stock exchange rights in respect thereof granted to directors, officers, employees or other providers equity-based awards if such payment or repurchase represents a portion of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise price of such Equity Interests options, rights or rightsawards or withholding taxes, and may issue common Equity Interests to settle rights in respect of Equity Interestspayroll taxes or other similar taxes due upon such exercise, and purchase or exchange;
(e) the Borrower may make additional cash payments in lieu of the issuance of fractional shares representing Equity Interests in the Borrower in connection with the exercise of warrants, options or other Securities convertible into or exchangeable for common stock in the Borrower;
(f) the Borrower may make Restricted Junior Payments in respect of its Equity Interests pursuant to and in accordance with stock option plans or other benefit plans or agreements for directors, officers or employees of the Borrower and its Subsidiaries; provided that the amount of any such Restricted Junior Payments, together with the aggregate amount of all other Restricted Junior Payments made in reliance on this clause (f) during the same Fiscal Year, shall not exceed the sum of (i) the greater of (x) $20,000,000 and (y) 1.0% of Consolidated Total Assets as of the last day of the then most recently ended Test Period, plus (ii) any unutilized portion of such amount in any preceding Fiscal Year ended after the Closing Date;
(g) so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) continuing, the sum of Borrower may repurchase common stock in the amount such Restricted Junior Payment and Borrower, provided that the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (eg) shall not exceed 50% the quotient obtained by dividing (i) the aggregate principal amount, without duplication, of all prepayments of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which Tranche B Term Loans (other than any prepayments pursuant to Section 2.13 or in connection with any refinancing of any Tranche B Term Loans (including on account of incurrence of any Permitted Credit Agreement Refinancing Indebtedness)) by (ii) three (such repurchases, “Permitted Stock Repurchases”);
(h) to the financial statements required extent constituting Restricted Junior Payments of the type referred to in clause (a) or (b) of the definition of such term, the Borrower and the Restricted Subsidiaries may consummate the transactions permitted by Section 5.01(b6.6 (other than in reliance on Section 6.6(q)) shall have been deliveredand Section 6.8 (other than in reliance on Section 6.8(b)(i)(D)) (it being understood that this clause (g) may be relied on to consummate any transaction that is technically subject to this Section 6.4 but is intended to be restricted primarily by any such other Section, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and but may not be relied on to consummate any transaction that is intended to be restricted primarily by this Section 6.4);
(iiii) the Borrower shall have delivered to and the Administrative Agent a certificate Restricted Subsidiaries may make regularly scheduled interest and principal payments as and when due in respect of any Junior Indebtedness (including any “AHYDO catch-up payment” with respect to, and required by the chief financial officer terms of, any indebtedness of the Borrower demonstrating compliance or any Restricted Subsidiary), other than payments in respect of Subordinated Indebtedness prohibited by the subordination provisions thereof;
(j) the Borrower and the Restricted Subsidiaries may refinance Junior Indebtedness with clauses the proceeds of other Indebtedness to the extent permitted under Section 6.1;
(k) the Borrower and the Restricted Subsidiaries may make payments of or in respect of Junior Indebtedness made solely with Equity Interests in the Borrower (other than Disqualified Equity Interests);
(l) so long as no Default or Event of Default shall have occurred and be continuing, (i) the Borrower may declare and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereof.pay dividends or other distributions with respect to
Appears in 1 contract
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries or Affiliates through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that (a) Company may make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the Borrower or any Subsidiary may declare and pay dividendsterms of, and make only to the extent required by, and subject to the subordination provisions contained in, the indenture or other distributions, with respect agreement pursuant to its Equity Interests payable solely in additional Equity Interests, which such Subordinated Indebtedness was issued as such indenture or other agreement may be amended from time to time to the extent permitted under Section 6.14; (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Company may make Restricted Junior Payments (i) in an aggregate amount not to exceed $500,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses and (ii) to the sum extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose; (c) so long as no Default or Event of Default shall have occurred and the aggregate amount be continuing or be caused thereby, Holdings may repurchase stock and options from any stockholder (x) in exchange for notes issued pursuant to Section 6.1(p), (y) in exchange for Capital Stock of all prior Holdings or (z) in exchange for Cash and Cash Equivalents (and Company may make Restricted Junior Payments made to Holdings) in reliance on this clause (e) shall an amount not to exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the $5,750,000 in any Fiscal Year ending December 31, 2012, taken as a single accounting period and $23,000,000 in the aggregate from the Closing Date to the date of determination and (iiid) the Borrower shall have delivered to the Administrative Agent a certificate Company may make payments in respect of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofManagement Fees.
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (Amscan Holdings Inc)
Restricted Junior Payments. The Parent and Borrower will shall not, and will shall not permit any Subsidiary of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided that (ai) Borrower may purchase the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, Sponsor Preferred Stock from the Sponsor in accordance with respect to its Equity Interests payable solely in additional Equity Intereststhe terms of Section 7.3(xiii)(a), (bii)(x) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers regularly scheduled payments of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights interest in respect of Equity Interestsany Senior Subordinated Notes and any Permitted Additional Subordinated Financing in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the Senior Subordinated Note Indenture or the indenture governing any such Permitted Additional Subordinated Financing, as the case may be, as any 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 (ez) after the Borrower may make additional cash Restricted fifth anniversary of the Parent Junior Payments Subordinated Notes Issue Date and, so long as at the time no Event of and after giving effect to each such Restricted Junior Payment, (i) no Default or Potential Event of Default shall have occurred and be continuing and (ii) on the sum of the amount 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, (1) Parent may make regularly scheduled payments of interest in cash in respect of any Parent Junior Subordinated Notes in accordance with the terms of, and only to the aggregate amount of all prior 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 (2) Borrower may make Restricted Junior Payments made to Parent in reliance on this an amount necessary to permit Parent to make Restricted Junior Payments in accordance with the immediately preceding clause (ez)(1), so long as Parent applies the amount of any such Restricted Junior Payment for such purpose, (iii) dividends may accumulate (but may not be paid except as otherwise provided herein) on the Sponsor Preferred Stock in accordance with the Sponsor Preferred Stock Documents, (iv) Borrower may make Restricted Junior Payments to Parent (a) in an aggregate amount not to exceed $1,000,000 in any Fiscal Year, to the extent necessary to permit Parent to pay its overhead expenses and (b) in an amount necessary to permit Parent to discharge the consolidated tax liabilities of Parent and its Subsidiaries paid in cash, in each case so long as Parent applies the amount of any such Restricted Junior Payment for such purpose, (v) Borrower may make Restricted Junior Payments to pay Additional Costs in accordance with the definition of Additional Costs, and (vi) so long as (A) no Event of Default or Potential Event of Default shall not exceed 50% 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 in pro forma compliance with each of the Borrower’s aggregate Consolidated Net Income covenants contained in subsection 7.6 for all completed the most recent full Fiscal Years Quarter immediately preceding the date of the payment of such Restricted Junior Payment for which the relevant financial statements required by Section 5.01(binformation has been delivered pursuant to clauses (ii) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the of subsection 6.1, and (C) Borrower shall have delivered to the Administrative Agent an Officer’s Certificate in form and substance satisfactory to Administrative Agent (including a certificate calculation of the chief financial officer compliance with the covenants contained in subsection 7.6) certifying as to the accuracy of the Borrower demonstrating compliance with foregoing clauses (iA) and (iiB) above, together with(1) Borrower may make Restricted Junior Payments to Parent to the extent necessary to permit Parent to purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Parent held by directors, officers or employees of Parent or Borrower or any of their respective Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the case terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued, in an aggregate amount not to exceed $5,000,000 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 clause (iivi)(1) in prior Fiscal Years, with up to a maximum amount of $10,000,000 over the term of this Agreement and (2) Borrower may make Restricted Junior Payments in an aggregate amount not to exceed $3,000,000 in any Fiscal Year; provided that (A) Borrower may carry forward to each succeeding Fiscal Year the aggregate amount of Restricted Payments permitted (but not made) pursuant to this clause (vi)(2) in prior Fiscal Years, with up to a maximum amount of $10,000,000 during the term of this Agreement and (B) the amount of Restricted Junior Payments that would otherwise be permitted pursuant to this clause (vi)(2) shall be reduced on a dollar-for-dollar basis by the amount of any Investments made pursuant to subsection 7.3(xiii)(b), reasonably detailed calculations in support thereof.
Appears in 1 contract
Restricted Junior Payments. The Borrower will Parent shall not, and will shall not permit Borrower or any Subsidiary of its other Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided that (ai) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect Restricted Junior Payments to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably cash interest payments to the holders of such Equity Intereststhe Senior Guaranteed Notes and Subordinated Notes, in accordance with the terms of, and only to the extent required by, the Senior Guaranteed Note Documents or the Subordinated Note Documents, (cii) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers regularly scheduled payments of services to the Borrower principal and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights interest in respect of Equity Intereststhe Bridge Financing in accordance with the terms of and subject to the subordination provisions contained in, the Bridge Financing Documents, and Borrower may prepay all Indebtedness evidenced by the Bridge Notes with Net Securities Proceeds from a Permitted Securities Issuance, (eiii) Parent may consummate the Distribution Transaction to the extent permitted under subsection 2.4B(iii)(e); provided that in no event shall the amount of the Distribution Transaction made in accordance with this clause (iii), together with the amount of the liquidation preference of any Preferred Distribution Stock issued in accordance with clause (vii) of this subsection 7.5, exceed $16,000,000; (iv) if proceeds of the PIDA Loan are actually received by Borrower, Borrower may at any time on or prior to June 30, 1997 consummate the Preferred Stock Redemption for an aggregate amount not to exceed the lesser of (x) $1,225,000 and (y) the Borrower may make additional cash Restricted Junior Payments gross proceeds of the PIDA Loan plus $225,000 less the face amount of any Letter of Credit supporting the PIDA Loan, (v) so long as at the time no Event of and after giving effect to each such Restricted Junior Payment, (i) no Default or Potential Event of Default shall have occurred and be continuing and (ii) the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior or shall be caused thereby, Borrower may make Restricted Junior Payments made to Parent to enable Parent to make Restricted Junior Payments to First Atlantic Capital, Ltd. pursuant to the terms of the Management Consulting Agreement in reliance effect on the Closing Date in an aggregate amount not to exceed $600,000 plus reasonable out of pocket expenses in any Fiscal Year, provided that notwithstanding any Event of Default or Potential Event of Default, fees otherwise payable under the Management Consulting Agreement may accrue but shall not be payable until such time as such Potential Event of Default or Event of Default is cured or is waived, at which time all such accrued fees shall be payable, and (vi) so long as no Event of Default or Potential Event of Default has occurred and is continuing or shall be caused thereby, Borrower may make Restricted Junior Payments to Parent to enable Parent to repurchase equity investments of management investors pursuant to the Stockholders Agreement; provided that the amount of Restricted Junior Payments pursuant to this clause (evi) shall not exceed 50% (x) prior to the Permitted Securities Issuance Prepayment Date, $500,000 during any Fiscal Year and (y) after the Permitted Securities Issuance Prepayment Date, in any Fiscal Year, an amount equal to that portion of Consolidated Excess Cash Flow for the immediately preceding Fiscal Year not required to prepay Loans pursuant to subsection 2.4B(iii)(f) so long as, immediately after giving effect to any such Restricted Junior Payment, Borrower shall have not less than $5,000,000 of availability under the Revolving Loan Commitments (giving effect to the Borrowing Base as of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which date of determination), and (vii) so long as no Event of Default or Potential Event of Default has occurred or is continuing or shall be caused thereby, Parent may declare and make a distribution on the financial statements required by Section 5.01(bClass A (Voting and Nonvoting) Common Stock of the Preferred Distribution Stock; provided that in no event shall have been deliveredthe amount of liquidation preference of any Preferred Distribution Stock issued in accordance with this clause (vii), commencing together with the Fiscal Year ending December 31, 2012, taken as a single accounting period and amount of the Distribution Transaction made in accordance with clause (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) abovethis subsection 7.5, together with, in the case of clause (ii), reasonably detailed calculations in support thereofexceed $16,000,000.
Appears in 1 contract
Samples: Credit Agreement (CFP Holdings Inc)
Restricted Junior Payments. The (A) Borrower will not, not and will not permit any Subsidiary to, declare or make, or agree of its Subsidiaries to pay or make, directly or indirectlyindirectly declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, that:
(i) So long as no Default or Event of Default shall have has occurred or is continuing, or would arise as a result of the following, Borrower may make regularly scheduled payments with respect to the Subordinated Notes and be continuing any other Indebtedness permitted by subsection 7.1 that constitutes Subordinated Indebtedness as required in accordance with the terms thereof, but only, in each case, to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Indebtedness was issued or otherwise as approved in writing by Requisite Lenders; PROVIDED THAT, after giving effect to any payment of the Seller Subordinated Note (i) the Fixed Charge Coverage Ratio as of such date of payment is at least 1.30 to 1.0, and (ii) the sum Maximum Revolving Loan Amount exceeds the principal balance of the amount Revolving Loans by at least $3,000,000;
(ii) Subject to the limitations set forth in the proviso concluding this clause (ii), Borrower may make payments and distributions to Holdings to permit Holdings to pay federal and state income taxes then due and owing, franchise taxes and other similar licensing expenses incurred in the ordinary course of business with respect to the income or assets of Borrower net of any refunds or credit with respect to such Restricted Junior Payment and income or assets; provided, however, Borrower's contribution to taxes as a result of the aggregate amount filing of all prior a consolidated return by Holdings shall not be greater, nor the receipt of tax benefits less, than they would have been had Borrower not filed a consolidated return with Holdings; and
(iii) Subsidiaries of Borrower may make Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered respect to their common stock to the Administrative Agent a certificate of extent necessary to permit Borrower to pay the chief financial officer of the Borrower demonstrating compliance with Obligations and to make any Restricted Junior Payments permitted under clauses (i) and (ii) above, together with, above and to permit Borrower to pay expenses incurred in the case ordinary course of clause business.
(ii)B) Notwithstanding any other provision of this Agreement to the contrary, reasonably detailed calculations in support thereofBorrower will not and will not permit any of its Subsidiaries to make any portion of the payments permitted under clauses (i) through (iii) of subsection 7.5(A) with the proceeds derived from the issuance by Borrower of capital stock.
Appears in 1 contract
Restricted Junior Payments. The Borrower will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, Make any Restricted Junior Payment; provided that the Loan Parties may make dividends on account of Stock of the Loan Parties, or incur any obligation subject to the conditions set out below:
I. Conditions Applicable to the First $2,500,000 (contingent or otherwisein the Aggregate) to do so, except that of such Dividends
(a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred occurred;
(b) Lender shall have received copies of the audited, annual financial statements of the Loan Parties for the most recently completed financial year;
(c) Borrowers shall have had minimum Excess Availability of $2,500,000 for the thirty (30) days prior to the payment of any such dividend and shall have demonstrated to Lender, on a pro forma basis prior to the payment of any such dividend, that: (I) Excess Availability will be continuing $2,500,000 for the thirty (30) days following the payment of such dividend, (II) the Loan Parties will be in compliance with all covenants in this Agreement, assuming such dividend has been made and (iiIII) that no Default or Event of Default shall be caused by the sum payment of such dividend;
(d) that dividends may only be made once per calendar year and not prior to receipt by Lender of the amount such Restricted Junior Payment and 2014 audited, annual financial statements of the Loan Parties; and
(e) that the aggregate amount of all prior Restricted Junior Payments dividends made in reliance on this clause (e) pursuant to Section 7.9I shall not exceed 50% $2,500,000.
II. Conditions Applicable to any Dividends in Excess of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which First $2,500,000 (in the Aggregate)
(a) no Default or Event of Default shall have occurred;
(b) Lender shall have received copies of the audited, annual financial statements required by Section 5.01(bof the Loan Parties for the most recently completed financial year;
(c) Borrowers shall have had minimum Excess Availability of $3,000,000 and a Fixed Charge Coverage Ratio of 1.25:1.00 for the thirty (30) days prior to the payment of such dividend and shall have demonstrated to Lender, on a pro forma basis prior to the payment of such dividend, that: (I) Excess Availability will be $3,000,000 and the Fixed Charge Coverage Ratio will be 1.25:1.00 for the thirty (30) days following the payment of such dividend, (II) the Loan Parties will be in compliance with all covenants in this Agreement, assuming such dividend has been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period made and (iiiIII) that no Default or Event of Default shall be caused by the Borrower shall have delivered to the Administrative Agent a certificate payment of the chief financial officer of the Borrower demonstrating compliance with clauses such dividend; and
(id) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofthat dividends may only be made once per calendar year.
Appears in 1 contract
Samples: Credit Agreement (BBX Capital Corp)
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries or Affiliates through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that that:
(a) Borrower may (i) make regularly scheduled payments of interest (it being understood that such payments may only be in the form of payment-in-kind interest) or required prepayments of principal and interest (it being understood that such payments may only be in the form of payment-in-kind interest) in respect of the Second Lien Term Loans in accordance with the terms of the Second Lien Credit Agreement and the Intercreditor Agreement (ii) refinance the First Lien Term Loan and the Second Lien Term Loan in accordance with Section 6.1(c) and (iii) make regularly scheduled payments of interest in respect of Indebtedness incurred pursuant to Section 6.1(o);
(b) Restricted Junior Payments may be made as permitted pursuant to the Plan;
(c) Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to dividends in the form of its Equity Interests payable solely in additional common Equity Interests, ;
(bd) any Subsidiary may declare and pay make Restricted Junior Payments to a Credit Party (other than dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, Movie Gallery Canada);
(ce) the Borrower and its Subsidiaries any Credit Party may make Restricted Junior PaymentsPayments of the type described in clauses (i), (ii) and (iii) of the definition thereof in an amount equal to the proceeds of the sale of Equity Interests;
(f) the Credit Parties may make Restricted Junior Payments of the type described in clauses (i), (ii) and (iii) of the definition thereof in an amount not exceeding to exceed (A) $100,000,000 1,000,000 in the aggregate for in any Fiscal Year, Year and (dB) $3,000,000 in the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services aggregate from the Closing Date to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise date of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and determination; and
(eg) the Borrower any Credit Party may make additional cash Restricted Junior Payments so long as at the time in repayment of and after giving effect to each such Restricted Junior Paymentany Indebtedness under any Seasonal Overadvance Facility, (i) provided, that no Default or Event of Default shall have occurred and be continuing and (ii) would result from the sum making of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered Payment. Notwithstanding anything to the Administrative Agent a certificate contrary, including, without limitation, in this Section 6.4, no Credit Party shall, nor shall it permit any of the chief financial officer of the Borrower demonstrating compliance with its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any dividend or other distribution, in each case in Cash, except as provided in clauses (id) and (iif) above, together with, in until the case full and final payment of clause (ii), reasonably detailed calculations in support thereofall Obligations.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Movie Gallery Inc)
Restricted Junior Payments. The Borrower will Holdings and Company shall not, and will with respect to clause (iv) of the definition of Restricted Junior Payment shall not permit any Subsidiary of their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided that (a) in the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interestscase of clauses (i), (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interestsiii), (cvii) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (eviii) the Borrower may make additional cash Restricted Junior Payments below so long as at the time no Event of and after giving effect to each such Restricted Junior Payment, (i) no Default or Potential Event of Default shall have occurred and be continuing or would result therefrom):
(i) Company and its Subsidiaries may make regularly scheduled payments of interest in respect of any Subordinated Indebtedness in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as such indenture or other agreement may be amended from time to time to the extent permitted under this Agreement;
(ii) any Subsidiary of Holdings may make Restricted Junior Payments to Holdings in an aggregate amount not in excess of $3,000,000 in any Fiscal Year (i) to fund any redemption or repurchase of Capital Stock that is required pursuant to the terms of any “qualified stock bonus plan” under Section 401(a) of the Internal Revenue Code that complies in all material respects with the applicable provisions of Sections 404, 409 and 415 of the Internal Revenue Code and (ii) to repurchase the sum Capital Stock of Holdings from directors, employees or members of management of Holdings or any Subsidiary (or their estate, family members, spouse and/or former spouse);
(iii) Company and its Subsidiaries may make any payment or prepayment of principal of, premium, if any, or interest on, or redeem, purchase, retire, defease (including in-substance or legal defeasance), create a sinking fund or make a similar payment with respect to, Subordinated Indebtedness of Company and its Subsidiaries with the proceeds of any refinancing Indebtedness of Company and its Subsidiaries permitted by subsection 7.1 so long as such refinancing Indebtedness is Subordinated Indebtedness of Company and its Subsidiaries and subordinated to at least the same extent as the Subordinated Indebtedness being refinanced;
(iv) Holdings and Company may declare and make dividend payments or other distributions payable solely in Specified Equity of such Person;
(v) any Subsidiary of Holdings may make Restricted Junior Payments to Holdings:
(a) the proceeds of which will be used to pay the tax liability for the relevant jurisdiction in respect of consolidated, combined, unitary or affiliated tax returns filed by Holdings (that include Company and or any of its Subsidiaries) to the extent such tax liability does not exceed the lesser of (a) the taxes that would have been payable by Company and its Subsidiaries as a stand-alone group to the extent that any such taxes are not paid or to be paid directly by Company or its Subsidiaries or (b) the actual tax liability of the Holdings consolidated, combined, unitary or affiliated group to the extent paid or to be paid by Holdings; and
(b) the proceeds of which shall be used by Holdings to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including, without limitation, administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $120,000 in any Fiscal Year plus any reasonable and customary indemnification claims made by directors or officers of Holdings attributable to the ownership or operations of Company and its Subsidiaries;
(vi) Holdings may make Restricted Junior Payments consisting of repurchases of Capital Stock of Holdings deemed to occur upon the non-cash exercise of stock options and warrants;
(vii) Company may make Restricted Junior Payments after the Closing Date equal to 50% of the Consolidated Net Income of Company and its Subsidiaries for the period (taken as one accounting period) commencing with the Fiscal Quarter ending September 30, 2007 and ending on the date of Holdings’ most recently ended Fiscal Quarter for which financial statements required to be delivered pursuant to subsections 6.1(ii) or (iii) are available at the time of such Restricted Junior Payment and Payment; provided that the aggregate amount of all prior such Restricted Junior Payments made in reliance on this clause (e) for any such Fiscal Year shall not exceed 50% of $2,400,000; and
(viii) Holdings and Company may make other Restricted Junior Payments after the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered Closing Date equal to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereof$9,000,000.
Appears in 1 contract
Samples: Second Lien Credit Agreement (IntraLinks Holdings, Inc.)
Restricted Junior Payments. The Borrower will shall not, and will it shall not permit any Subsidiary other Loan Party, through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that Payment other than:
(a) so long as no Default under Section 7.01(c) or Section 7.01(h) nor any Event of Default shall have occurred and be continuing (or would result therefrom), dividends or other distributions of amounts reimbursed under Section 4.4 of the Building Loan Disbursement Agreement or under Section 4.2 of the Project Disbursement Agreement;
(b) dividends or other payments (including pursuant to a tax sharing agreement) to the direct or indirect owners of the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely any taxable year during which the Borrower is a Pass Through Entity or a member of consolidated, combined or unitary tax group of which a direct or indirect owner of the Borrower is the common parent, in additional Equity Interestsan aggregate amount not to exceed the Tax Amount for such taxable year (it being understood and agreed that (i) such dividends or other payments may be paid on a quarterly basis based on estimates of the Tax Amount made by the Borrower in good faith, (ii) without limiting the provisions of preceding sub-clause (i), to the extent that any such dividends or other distributions exceed (or are less than) the Tax Amount for such taxable year as a result of such quarterly estimates, the amount permitted to be paid pursuant to this clause (b) in the immediately succeeding taxable year (or, if necessary, the subsequent taxable years) shall, without duplication, be reduced or increased, as applicable, by a like amount and (iii) any portion of the Tax Amount for such taxable year that is attributable to an Unrestricted Subsidiary may declare and pay dividends or make other distributions with respect shall be payable pursuant to its Equity Interests ratably this clause (b) only to the holders of extent cash distributions are received by the Loan Parties from such Equity Interests, Unrestricted Subsidiaries);
(c) dividends, other distributions or payments to the Borrower Equity Pledgor or Empire, such dividends and its Subsidiaries may make Restricted Junior Paymentsdistributions not to exceed in any Fiscal Year 1.00% of the net revenues of the Loan Parties in such Fiscal Year;
(d) so long as no Default under Section 7.01(c) or Section 7.01(h) nor any Event of Default has occurred and is then continuing (or would result therefrom), dividends or other distributions (not exceeding in excess of $100,000,000 1,000,000 in the aggregate for any Fiscal Year, (dduring the term of this Agreement) to direct or indirect parent entities of the Borrower may redeem in amounts necessary to repurchase Capital Stock in, or otherwise cancel Equity Interests or rights in respect thereof granted to directorsIndebtedness of, officers, employees or other providers of services such parent entities to the Borrower extent required by the Gaming Authorities for not more than the fair market value thereof in order to avoid the suspension, revocation or denial by the Gaming Authorities of a Gaming License; provided, that so long as such efforts do not jeopardize any such Gaming License, such parent entities shall have diligently and the Subsidiaries in an amount required good faith attempted to satisfy tax withholding obligations related find a third-party purchaser(s) for such Capital Stock or Indebtedness and no third-party purchaser(s) for such Capital Stock or Indebtedness acceptable to the vesting, settlement Gaming Authorities was willing to purchase such Capital Stock or exercise of such Equity Interests or rights, and may issue common Equity Interests Indebtedness within a time period acceptable to settle rights in respect of Equity Interests, and the Gaming Authorities;
(e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (ix) no Default or Event of Default shall have occurred and be continuing or shall be caused thereby and (iiy) the sum pro forma First Lien Leverage Ratio as of the amount last day of the most recently ended Fiscal Quarter for which financial statements have been delivered with respect thereto pursuant to Section 5.01(b) or Section 5.01(c) is not greater than 2.75:1.00 (determined as if such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments dividend, distribution or other payment, together with any other dividend, distribution or other payment made in reliance on this clause (e) and any Investments made in reliance on Section 6.07(m) and, in each case, any Indebtedness incurred in connection therewith or with respect thereto after the last day of such Fiscal Quarter, were made or incurred on such last day), Restricted Junior Payments on any date in an amount not to exceed the Available Amount on such date; provided that in no case shall not exceed 50% dividends be made pursuant to this clause (e) prior to the Full Opening Date; and
(f) to the extent constituting Restricted Junior Payments, payments associated with “phantom equity” compensatory arrangements entered into in the ordinary course of business with officers and employees of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered Loan Parties not to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, exceed $1,000,000 in the case aggregate during the term of clause (ii), reasonably detailed calculations in support thereofthis Agreement.
Appears in 1 contract
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries or Affiliates through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that that:
(a) Borrower may (i) make regularly scheduled payments of interest (it being understood that such payments may only be in the form of payment-in-kind interest) or required prepayments of principal and interest (it being understood that such payments may only be in the form of payment-in-kind interest) in respect of the Second Lien Term Loans in accordance with the terms of the Second Lien Credit Agreement and the Intercreditor Agreement, (ii) refinance the Second Lien Term Loans in accordance with Section 6.1(c) and (iii) make regularly scheduled payments of interest in respect of Term Loan Refinancing Indebtedness;
(b) Restricted Junior Payments may be made as permitted pursuant to the Plan;
(c) Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to dividends in the form of its Equity Interests payable solely in additional common Equity Interests, ;
(bd) any Subsidiary may declare and pay make Restricted Junior Payments to a Credit Party (other than dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, Movie Gallery Canada);
(ce) the Borrower and its Subsidiaries any Credit Party may make Restricted Junior PaymentsPayments of the type described in clauses (i), (ii) and (iii) of the definition thereof in an amount equal to the proceeds of Equity Interests not exceeding required to prepay the Loans pursuant to Section 2.15(c);
(f) the Credit Parties may make Restricted Junior Payments of the type described in clauses (i), (ii) and (iii) of the definition thereof in an amount not to exceed (A) $100,000,000 1,000,000 in the aggregate for in any Fiscal Year, Year and (dB) $3,000,000 in the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services aggregate from the Closing Date to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise date of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and determination; and
(eg) the Borrower may make additional cash Restricted Junior Payments so long as at payments required under the time of and after giving effect to each such Restricted Junior PaymentSeasonal Overadvance Facility in accordance with its terms, (i) provided, that no Default or Event of Default shall have occurred and be continuing and (ii) would result from the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered payment thereof. Notwithstanding anything to the Administrative Agent a certificate contrary, including, without limitation, in this Section 6.4, no Credit Party shall, nor shall it permit any of the chief financial officer of the Borrower demonstrating compliance with its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any dividend or other distribution, in each case in Cash, except as provided in clauses (id) and (iif) above, together with, in until the case full and final payment of clause (ii), reasonably detailed calculations in support thereofall Obligations.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (Movie Gallery Inc)
Restricted Junior Payments. The Borrower will notDirectly or indirectly, and will not permit any Subsidiary todeclare, declare order, pay, make or makeset apart, or agree to pay declare, order, pay, make or makeset apart, or permit any of its Subsidiaries through any manner or means or through any other Person to directly or indirectlyindirectly declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation Payment except:
(contingent or otherwise) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (ei) the Borrower may make additional cash Restricted Junior Payments so long as at to Parent to the time extent necessary to permit Parent to purchase or redeem Equity Interests of and after giving effect to each such Restricted Junior PaymentParent (including related stock appreciation rights or similar securities) (A) held by then present or former directors, (i) no Default consultants, officers or Event of Default shall have occurred and be continuing and (ii) the sum employees of the amount Borrower, Parent or any of their respective Subsidiaries or by any employee compensation and incentive arrangements upon such Restricted Junior Payment person’s death, disability, retirement or termination of employment or under the terms of any such employee compensation and incentive arrangements or any other agreement under which such shares of stock or related rights were issued or (B) held by present or former officers, directors or employees of the Borrower, Parent or any of their respective Subsidiaries at any time in order to provide liquidity to such officers in the ordinary course of business; provided that the aggregate amount of all prior Restricted Junior Payments made in reliance on such purchases or redemptions under this clause paragraph (ei) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and $100,000,000 (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together withplus, in the case of either subclause (A) or (B), the amount of net proceeds received by the Borrower or Parent during such fiscal year from (x) sales of Equity Interests of Parent to directors, officers or employees of the Borrower, Parent or any of their respective Subsidiaries in connection with employee compensation and incentive arrangements and (y) third-party insurers under key-man life insurance policies that were not already applied under this clause (i)) which, if not used in any year, may be carried forward to any subsequent fiscal year;
(ii)) repurchases of common stock of Parent in open market transactions, reasonably detailed calculations pursuant to the existing stock repurchase program approved by the governing body of Parent, in support thereofan aggregate amount not to exceed $62,000,000; and
(iii) 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.
Appears in 1 contract
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries or Affiliates through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary of Borrower may declare and pay dividends or make other distributions with respect ratably to its Equity Interests ratably to the equity holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and but after giving effect to each such Restricted Junior Payment, any preferred Equity Interests); (ib) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may make Restricted Junior Payments to Holdings (i) in an aggregate amount not to exceed $300,000 (or, following a Qualified IPO, $1,500,000) in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses (provided if, as of the last day of any Fiscal Year, the Leverage Ratio (determined for such Fiscal Year by reference to the Compliance Certificate delivered pursuant to Section 5.1(d) calculating the Leverage Ratio as of the last day of such Fiscal Year) shall be less than or equal to 3.00:1.00, Borrower may make Restricted Junior Payments to Holdings to the extent necessary to permit Holdings to pay general administrative costs and expenses in an aggregate amount not to exceed $500,000 (or, following a Qualified IPO, $1,500,000) in any Fiscal Year (and Holdings may make Restricted Payments to any Parent Holding Company from any Restricted Payment received by it pursuant to this clause (b)(i) to pay general administrative costs and expenses of any Parent Holding Company) and (ii) to the sum extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose (and Holdings may make Restricted Payments to any Parent Holding Company from any Restricted Payment received by it pursuant to this clause (b)(ii) to discharge the consolidated tax liabilities of any Parent Holding Company and its Subsidiaries, in each case so long as such Parent Holding Company applies the amount of any such Restricted Junior Payment for such purpose); (c) Borrower may pay, or make Restricted Junior Payments to Holdings to allow it to pay, amounts to Permitted Holders and their respective Affiliates adequate to reimburse such Persons for (i) the amount of actual and documented expenses incurred in connection with the Management Agreement for the benefit of Holdings or any of its Subsidiaries and (ii) from and after the Funding Date, in equal quarterly installments (except that any management or similar fees paid in 2011 pursuant to this clause (ii) shall solely be paid in the fourth Fiscal Quarter of 2011 (but may be paid in one or more installments in such fourth Fiscal Quarter)), management fees (including for purposes of consulting or financial advisory services) or similar fees to Permitted Holders or their respective Affiliates, in the aggregate not exceeding $1,500,000 per Fiscal Year for such fees (provided if, as of the last day of any Fiscal Year, the Leverage Ratio (determined for such Fiscal Year by reference to the Compliance Certificate delivered pursuant to Section 5.1(d) calculating the Leverage Ratio as of the last day of such Fiscal Year) shall be (x) less than or equal to 3.50:1.00 but greater than 3.00:1.00 during the Fiscal Year immediately succeeding such Fiscal Year, Borrower may pay, or make Restricted Junior Payments to Holdings to allow it to pay, amounts pursuant to this clause (c)(ii) in an aggregate amount not to exceed $2,000,000 during the immediately succeeding Fiscal Year, (y) less than or equal to 3.00:1.00 but greater than 2.50:1.00 during the Fiscal Year immediately succeeding such Fiscal Year, Borrower may pay, or make Restricted Junior Payments to Holdings to allow it to pay, amounts pursuant to this clause (c)(ii) in an aggregate amount not to exceed $3,000,000 during the immediately succeeding Fiscal Year or (z) less than or equal to 2.50:1.00 during the Fiscal Year immediately succeeding such Fiscal Year, Borrower may pay, or make Restricted Junior Payments to Holdings to allow it to pay, amounts pursuant to this clause (c)(ii) in an aggregate amount not to exceed $5,000,000 during the immediately succeeding Fiscal Year); provided that in any event such management or similar fees (but not the amounts under clause (c)(i)) shall be subordinated to the Obligations on terms satisfactory to Administrative Agent, and that upon the occurrence of a Default or an Event of Default and during the continuance thereof, no payment of any management fees or similar distributions to the Permitted Holders or any of their respective Affiliates shall be permitted under this Section 6.4(c), it being understood that nothing in this clause (c) shall prevent the accrual of unpaid management or similar fees; (d) Holdings and its Subsidiaries may repay or prepay or otherwise refinance the Existing Term Indebtedness and the Existing Revolving Credit Facility with the proceeds of the Loans and the Replacement Revolving Credit Facility, and may make distributions and payments contemplated under the applicable Restructuring Documentation (including the payments and conversions of Indebtedness described in Section 3.2(b)), including payments not exceeding $2,000,000 in the aggregate in settlement of Indebtedness under the “Junior Notes” (as defined in the Exchange Offering Memorandum) concurrently with consummation of the Exchange Offer; (e) Borrower may pay Restricted Junior Payments to Holdings to enable Holdings to repurchase, redeem, acquire or retire Equity Interests from any past or present officers, employees and directors of any Credit Party (or their estates, spouses, descendants or former spouses) pursuant to the terms of any management equity, subscription agreement, stock option agreement, shareholders agreement or similar agreement; provided, that the aggregate amount of all prior Restricted Junior Payments made cash paid in reliance on this clause (e) respect of all such Equity Interests so repurchased redeemed, acquired or retired shall not exceed 50% $3,500,000 in the aggregate; (f) after the Funding Date, Borrower may repay, prepay or purchase (and retire) Indebtedness under the Senior Subordinated Notes in an aggregate principal amount not to exceed the amount set forth on Schedule 6.1(n) (as increased by any increased principal amount of Senior Subordinated Notes that remain outstanding following the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(bExchange Offer due to Borrower obtaining a Permitted Waiver); and (g) shall have been delivered, commencing Holdings may make payments in an amount not to exceed $100,000 in connection with the Fiscal Year ending December 31, 2012, taken Holdings Merger as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, such payments are described in the case of clause (ii), reasonably detailed calculations in support thereofExchange Offering Memorandum.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Keystone Automotive Operations Inc)
Restricted Junior Payments. The Borrower will not, and will shall not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior Payment, except that, so long as the Facility Maturity Date has not been declared or incur any obligation (contingent automatically occurred and no Unmatured Event of Default or otherwise) to do soEvent of Default has occurred and is continuing or would result therefrom, except that (a) the Borrower or any Subsidiary may declare and pay dividendsmake Restricted Junior Payments to the holders of its membership interests from amounts available pursuant to Sections 2.04(a)(xii), 2.04(b)(vii) and make other distributions2.04(c)(x) or in accordance with Section 5.02(h) or may transfer any Zero Value Asset to the Transferor as an equity distribution; provided that:
(i) if no Unmatured Event of Default or Event of Default has occurred and is continuing, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary the Borrower may declare and pay dividends or make and other distributions to the Parent or the Transferor, in either case in cash or other property in or with respect to any taxable year of the Borrower (or any calendar year, as relevant) in amounts not to exceed 110% of the amounts that are required to be distributed by the Parent to (1) allow the Parent to satisfy the minimum distribution requirements imposed by Section 852(a) of the Code (or any successor thereto) to maintain its Equity Interests ratably eligibility to the holders of be taxed as a RIC for any such Equity Intereststaxable year, (c2) reduce to zero for any such taxable year its liability for federal income taxes imposed on (x) its investment company taxable income pursuant to Section 852(b)(1) of the Code (or any successor thereto), or (y) its net capital gain pursuant to Section 852(b)(3) of the Code (or any successor thereto), and (3) reduce to zero its USActive 55323723.3 liability for federal excise taxes for any such calendar year imposed pursuant to Section 4982 of the Code (or any successor thereto); and
(ii) the Borrower and its Subsidiaries may shall be permitted to make or declare a Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as Payment if at the time of any such Restricted Junior Payment and after giving effect to each such Restricted Junior Payment, thereto (iA) no Unmatured Event of Default or Event of Default shall have has occurred and be is continuing and (iiB) the sum of Advances Outstanding on such date do not exceed the amount Borrowing Base after giving effect to such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereof.Payment..
Appears in 1 contract
Samples: Loan and Servicing Agreement (BlackRock TCP Capital Corp.)
Restricted Junior Payments. The Borrower will Holdings and Company shall not, and will shall not permit any Subsidiary of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment; provided that (i) any -------- Subsidiary of Company may pay dividends to its equityholders, (ii) Company may make dividends to its partners necessary to consummate the Recapitalization Transactions, (iii) Holdings and Company may make any Restricted Junior Payments in accordance with the terms of, and only to the extent required by, the Recapitalization Agreement (iv) Company may make regularly scheduled payments of principal and interest in respect of the Senior Notes in accordance with the terms thereof, (v) Company may make Restricted Junior Payments to Holdings to the extent required for Holdings to make, and Holdings may make, regularly scheduled payments of interest in respect of the Shareholder Subordinated Notes in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, such 118 Shareholder Subordinated Notes, as applicable, (vi) Company may make regularly scheduled principal and interest payments in respect of Permitted Seller Notes to the extent permitted under subsection 7.1(viii) in accordance with the terms of, and subject to the subordination provisions contained in, such Permitted Seller Notes; (vii) Holdings may pay regularly scheduled distributions on the Preferred Units and Qualified Preferred Units pursuant to the terms thereof solely through the issuance of additional shares of such units, or incur any obligation by an increase in the liquidation preference thereof; (contingent or otherwiseviii) to do so, except that (a) Company may exchange the Borrower or any Subsidiary may declare and pay dividendsSenior Notes as contemplated by the Senior Note Indenture, and Holdings may exchange the Senior Discount Debentures in accordance with the Senior Discount Debentures; (ix) Company may make other distributionsRestricted Junior Payments to Holdings, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries Holdings may make Restricted Junior Payments, (a) in an aggregate amount not exceeding to exceed $100,000,000 1,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower extent necessary to permit Holdings to pay accounting, legal, SEC related, and similar fees and expenses and (b) to the partners of Holdings and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and General Partner for Permitted Tax Distributions; (ex) the Borrower may make additional cash Restricted Junior Payments so long as at the time no Potential Event of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing continuing, Company may make Restricted Junior Payments to Holdings, and Holdings may make Restricted Junior Payments, to permit the payment of the Xxxx Management Fees under the Xxxx Advisory Services Agreement and (iixi) the sum of the amount such Company may make Restricted Junior Payment Payments to Holdings to the extent required for Holdings to make, and Holdings may make, Restricted Junior Payments in an aggregate amount not to exceed $1,500,000 in any Fiscal Year to the extent necessary to make repurchases of Securities (and options or warrants to purchase such Securities) of Holdings from employees (a) upon termination (including by reason of death, disability or retirement) of such employees or (b) pursuant to a contractual obligation of Holdings or any of its Subsidiaries; provided however that, such amount for any Fiscal Year shall be -------- ------- increased by an amount equal to the excess, if any, of such amount for the previous Fiscal Year (as adjusted in accordance with this proviso) over the actual amount expended for such previous Fiscal Year; provided further that such -------- amount shall be reduced by the aggregate amount of all prior principal and interest payments made on any Shareholder Subordinated Notes permitted under subsection 7.1(vii) in such Fiscal Year; and, provided still further, that any Restricted -------- ----- ------- Junior Payments made by Company to Holdings permitted under this subsection shall be applied by Holdings for the purposes specified in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofsubsection.
Appears in 1 contract
Samples: Credit Agreement (Anthony Crane Holdings Capital Corp)
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries or Affiliates through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that (a) Borrower may make regularly scheduled payments of interest in respect of the Borrower or any Subsidiary may declare and pay dividendsSenior Notes in accordance with the terms of, and make only to the extent required by the Senior Notes Indenture or the applicable agreements governing such other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, Indebtedness; (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, Payments to Holdings (i) in an aggregate amount not exceeding to exceed $100,000,000 15,000,000 in the aggregate for any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses and not for any other purpose; provided, that any such payments to Holdings in respect of salaries, bonuses or fees paid to employees (other than such payments to retired or former employees as set forth on Schedule 4.20) shall not exceed $8,500,000 in the aggregate in any Fiscal Year unless Administrative Agent otherwise consents and (ii) to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose; (c)[*] and (d) Credit Parties may repurchase Capital Stock consisting of common stock held by employees pursuant to any employee stock ownership plan thereof upon the Borrower may redeem termination, retirement or otherwise cancel Equity Interests or rights death of any such employee in respect thereof granted to directors, officers, employees or other providers of services to accordance with the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise provisions of such Equity Interests or rightsplan, and may issue common Equity Interests provided, that, as to settle rights in respect any such repurchase, each of Equity Interests, and the following conditions are satisfied: (ei) as of the Borrower may make additional cash Restricted Junior Payments so long as at date of the time of payment for such repurchase and after giving effect to each such Restricted Junior Paymentthereto, (i) no Default or Event of Default shall exist or have occurred and be continuing continuing, ----------------- * Confidential information has been omitted pursuant to a request to the Securities and (ii) the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income Exchange Commission for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have confidential treatment. The information has been delivered, commencing separately filed with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofCommission.
Appears in 1 contract
Samples: Term Loan and Guaranty Agreement (Fedders Corp /De)
Restricted Junior Payments. The Borrower will Each Credit Agreement Party shall not, and will shall not permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation ; provided
(contingent or otherwisei) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers regularly scheduled payments of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights interest in respect of Equity Intereststhe Senior Notes in accordance with the terms of, and only to the extent required by the indenture or other agreement pursuant to which such Senior Notes were issued, as such indenture or other agreement may be amended from time to time to the extent permitted under subsection 7.12B, (eii) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (iA) no Event of Default or Potential Event of Default shall have occurred and be continuing and (ii) on the sum of the amount date such Restricted Junior Payment and is declared or to be made, nor would an Event of Default or Potential Event of Default result from the aggregate amount making of all prior such Restricted Junior Payments made Payment, (B) after giving effect to the making of such Restricted Junior Payment the Credit Agreement Parties shall be in reliance on this clause (e) shall not exceed 50% pro forma compliance with each of the Borrower’s aggregate Consolidated Net Income covenants contained in subsection 7.6 for all completed the most recent full Fiscal Years Quarter immediately preceding the date of such payment for which the relevant financial statements required by Section 5.01(binformation has been delivered pursuant to clauses (ii) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the of subsection 6.1, and (C) Borrower shall have delivered to the Administrative Agent an Officer's Certificate in form and substance satisfactory to Administrative Agent (including a certificate calculation of the chief financial officer compliance with the covenants contained in subsection 7.6) certifying as to the accuracy of the Borrower demonstrating compliance with foregoing clauses (A) and (B) above, either Credit Agreement Party or, if after the Qualified Reorganization Date, Additives, may make (1) Restricted Junior Payments described in subsection (i) of the definition of Restricted Junior Payment and (2) Restricted Junior Payments described in subsections (ii) aboveand (iii) of the definition of Restricted Junior Payment; provided, together withthat the aggregate amount of Restricted Junior Payments made pursuant to the preceding clauses (1) and (2) shall not exceed $5,000,000 in the aggregate in any Fiscal Year; and (iii) on and after the Qualified Holding Company Formation Date, so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower, or if on or after the Qualified Reorganization Date, Borrower and Additives, may make Restricted Junior Payments to Holdings (a) in an aggregate amount not to exceed $500,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses and (b) to the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in each case so long as Holdings applies the case amount of clause (ii), reasonably detailed calculations in support thereofany such Restricted Junior Payment for such purpose.
Appears in 1 contract
Samples: Credit Agreement (Ethyl Corp)
Restricted Junior Payments. The Borrower will not, and will not permit or cause any Subsidiary of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that that:
(a) the Borrower or any Subsidiary may declare and pay dividends, and (i) make other distributions, with respect to its Equity Interests Restricted Payments payable solely in additional Equity Intereststhe form of Capital Stock and (ii) purchase, redeem, retire, defease or otherwise acquire shares of its Capital Stock with the proceeds received contemporaneously from the issue of new shares of its Capital Stock;
(b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, [Reserved].
(c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, Tax Distributions;
(d) the Borrower may redeem or otherwise cancel Equity Interests or rights make additional Restricted Junior Payments in respect thereof granted an aggregate amount not to directorsexceed the portion, officersif any, employees or other providers of services to the Floating Restricted Junior Payment Amount that the Borrower and the Subsidiaries in an amount required elects to satisfy tax withholding obligations related apply pursuant to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and this clause (d);
(e) the Borrower may make additional cash Restricted Junior Payments so long as at the time Total Leverage Ratio, calculated on a Pro Forma Basis as of the date of declaration or giving irrevocable notice (which may be conditional) in respect thereof, as of the last day of the most recently ended Test Period, does not exceed 2.00:1.00 as of the last day of the most recently ended Test Period;
(f) the Borrower and any of its Restricted Subsidiaries may make Restricted Payments in Cash to any Parent Company to pay, or the proceeds of which are applied by such Parent Company to pay, cash dividends and distributions to any Parent Company (i) to the extent necessary to permit such Parent Company to pay legal, accounting and reporting expenses, (ii) to the extent necessary to permit such Parent Company to pay general administrative costs and expenses and to pay reasonable directors fees and expenses, (iii) to the extent necessary to permit any Parent Company to pay franchise fees or similar taxes and fees required to maintain its organizational existence, (iv) to the extent necessary to pay (x) fees and expenses related to debt or equity offerings, investments or acquisitions (whether or not consummated) and (y) after the consummation of an initial public offering or issuance of public debt securities, Public Company Costs, (v) for the payment of insurance premiums relating to the ownership or operations of any Parent Company and (vi) so long as no Event of Default shall have occurred or be continuing as of the date of declaration thereof, to repurchase, redeem, retire or otherwise acquire Capital Stock owned by future, present or former employees, officers, directors, members of management, managers or consultants (or any immediate family member of the foregoing) (to the extent the purchase price exceeds the amount of outstanding advances made to such individuals in connection with the purchase of Capital Stock) in an aggregate amount not to exceed the greater of $25,000,000 and 1.0% of Consolidated Total Assets (which shall increase to the greater of $50,000,000 and 2.0% of Consolidated Total Assets after a Qualifying IPO) as of the last day of the most recently ended Test Period (however, any Restricted Payments permitted to be made (but not made) pursuant to this clause (f)(vi) in a given fiscal year may be carried forward and made in the next succeeding fiscal year), plus the proceeds of (A) any key man life insurance policy and (B) any Capital Stock purchased by employees of the Borrower and its Restricted Subsidiaries following the Closing Date;
(g) the Borrower and any of its Restricted Subsidiaries may make Restricted Payments in Cash to Holdings to the extent necessary to facilitate any payments made on the Closing Date or substantially contemporaneously therewith in connection with the Transactions;
(h) to the extent constituting a Restricted Junior Payment, the Borrower and any Restricted Subsidiary may consummate any transaction permitted by Section 8.01 and Section 8.05 (other than Section 8.05(v));
(i) the Borrower or any Restricted Subsidiary may otherwise make any Restricted Junior Payments in an aggregate amount equal to (i) the portion, if any, of the Available Amount on the date of such election that the Borrower elects to apply this Section 8.06(i), plus (ii) the portion, if any, of the Available Starter Amount on the date of such election that the Borrower elects to apply this Section 8.06(i), provided that as of the date of declaration or giving effect to each irrevocable notice (which may be conditional) in respect of any such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(j) the Borrower may make Restricted Payments in Cash to Holdings the proceeds of which shall be used to make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of Holdings or their Subsidiaries; provided that any such cash payment shall not be for the purpose of evading the limitations set forth in this Section 8.06 (as determined in good faith by the Borrower or a Subsidiary of the Borrower);
(k) the Borrower or any Restricted Subsidiary may (i) make regularly scheduled payments of interest and fees, expenses and indemnification obligations in respect of any Subordinated Debt, the Senior Notes or Permitted External Refinancing Debt in accordance with the terms of, and to the extent permitted by, any subordination provisions contained in, the indenture or other agreement pursuant to which such Indebtedness was issued, (ii) purchase, defease, redeem, repurchase or otherwise acquire or retire Subordinated Debt, the Senior Notes or Permitted External Refinancing Debt in connection with any modification, exchange, refinancing, refunding, renewal, extension, or replacement, thereof permitted under Section 8.02 and (iii) make payments of interest in respect of Subordinated Debt, the Senior Notes or Permitted External Refinancing Debt in the form of payments in kind, accretion or similar payments;
(l) the Borrower may make Restricted Payments to Holdings (or any Parent Company) to finance any Investment permitted to be made pursuant to Section 8.05 as if such Investment were made by the Borrower or any Restricted Subsidiary; provided that (i) such Restricted Payments shall be made substantially concurrently with the closing of such Investment and (ii) Holdings (or such Parent Company) shall, promptly following the sum closing thereof, cause (A) all property acquired (whether assets or Capital Stock) to be contributed as equity to the Borrower or a Restricted Subsidiary or (B) the merger, consolidation or amalgamation (to the extent permitted hereunder) of the Person formed or acquired into the Borrower or a Restricted Subsidiary in order to consummate such Investment;
(m) following the consummation of the first Qualifying IPO, the Borrower may make (or may make Restricted Payments to any Parent Company to enable it to) Restricted Payments with respect to any Capital Stock in an amount such up to the greater of (x) 6.00% per annum of the net Cash proceeds received by or contributed to the Borrower from any Qualifying IPO and (y) $30,000,000 in any calendar year;
(n) the Borrower or any of its Restricted Junior Payment Subsidiaries may make Restricted Debt Payments with respect to intercompany Indebtedness between the Borrower and its Subsidiaries permitted under Section 8.02, subject to the aggregate amount subordination provisions applicable thereto;
(i) Restricted Debt Payments in exchange for, or with proceeds of all prior any issuance of Capital Stock of Holdings (or Parent Company thereto) or Capital Stock (other than Disqualified Capital Stock) of the Borrower or any Subsidiary Guarantor (other than issuances to the Borrower or a Restricted Junior Payments made Subsidiary) and/or any capital contribution in respect of Capital Stock (other than Disqualified Capital Stock) of the Borrower, in each case, that are Not Otherwise Applied in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) Available Amount and (ii) to the extent constituting a Restricted Debt Payment, payment in kind interest with respect to any such debt that is permitted under Section 8.02;
(p) to the extent constituting a Restricted Junior Payment, the Borrower and any of its Restricted Subsidiaries may consummate the Transactions and the payment of the related costs associated therewith; and
(q) Restricted Junior Payments in an amount, taken together with all Investments made pursuant to Section 8.05(cc) above, together with, in that does not exceed the case amount of clause (ii), reasonably detailed calculations in support thereofExcluded Contributions made since the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (Metaldyne Performance Group Inc.)
Restricted Junior Payments. The Parent and the Borrower will shall not, nor shall Parent and will not the Borrower permit any Subsidiary Loan Party through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that the foregoing shall not prohibit:
(a) Restricted Junior Payments by each wholly-owned Subsidiary of the Borrower or any Subsidiary may declare and pay dividendsto the holders of its Capital Stock;
(b) if no Event of Default has occurred, and make other distributionsthe payment of a Tax Distribution; provided that, with respect to its Equity Interests payable solely in additional Equity Interestsany proposed Tax Distribution, (bx) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably the applicable Loan Party has delivered to the holders Administrative Agent not less than five (5) Business Days prior to the scheduled date of such Equity Interestsproposed Tax Distribution (i) a report that evidences in reasonable detail the amounts to be so distributed, including the assumptions and calculations demonstrating that such Tax Distribution is being made in compliance with the definition of Tax Distribution and (ii) a certification that no Default or Event of Default has occurred and is continuing or would result therefrom and (y) the Administrative Agent has provided its prior written consent, not to be unreasonably withheld, to such Tax Distribution;
(c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in Payments required by the aggregate for any Fiscal Year, Warrants or Warrant Agreement;
(d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted dividends of up to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments $150,000 per calendar month so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have has occurred and be continuing and is continuing, (ii) the sum of Borrower is in pro forma compliance with Section 6.7(b), the amount such Restricted Junior Payment Leverage Ratio does not exceed 2.00:1.00 and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been deliveredAsset Coverage Ratio is greater than 3.00:1:00, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the outstanding principal amount of the Loans hereunder is no greater than $30,000,000, (iv) such payment is made solely with cash flows attributable to the Xxxx Creek Assets, and (v) the Borrower shall have delivered to provide the Administrative Agent a certificate of with written notice five (5) Business Days prior to such payment and shall provide any information requested by the chief financial officer of the Borrower demonstrating compliance with clauses Administrative Agent in connection therewith; and
(ie) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofpayments to COPL pursuant to Section 6.24 hereof.
Appears in 1 contract
Samples: Term Loan Credit Agreement
Restricted Junior Payments. The Neither the Borrower will not, and will not permit nor any Subsidiary to, of its Subsidiaries shall declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior Payment, or incur any obligation except:
(contingent or otherwise) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (ei) the Borrower may make (a) mandatory payments of interest due on the Subordinated Intercompany Indebtedness ("Subordinated Interest Payments") and (b) other distributions (the "Holdings' Dividends") to Holdings or to the Finance Subsidiary, as applicable, in any fiscal year, from funds legally available for such purpose, provided the aggregate amount of (1) Subordinated Interest Payments, plus (2) Holdings' Dividends minus the aggregate amount of additional Subordinated Intercompany Indebtedness loaned by Holdings or by the Finance Subsidiary, as applicable, to the Borrower on the date of any such distribution does not exceed in the aggregate; (A) 50% of the net earnings (or loss) after taxes of Borrower and its consolidated Subsidiaries on a consolidated basis for the period from January 1, 1996 to the end of the most recently completed fiscal year for which the audited financial statements have been delivered pursuant to Section 6.1(A)(i) taken as a single accounting period determined in conformity with Agreement Accounting Principles minus (B) the aggregate amount of Contingent Obligations which are the subject of an Upstream Guarantee;
(ii) the Borrower may make distributions to Holdings in any fiscal year, from funds legally available for such purpose, in an amount not to exceed the amount calculated pursuant to Schedule 6.3(F)(ii) minus any amounts paid directly by the Borrower to any Governmental Authority with respect to the consolidated group's tax liability;
(a) mandatory payments of interest, principal or premium, if any, due on the Subordinated Indebtedness as permitted under Section 6.3(A)(ii)(c), unless such payments are prohibited by the terms of such Indebtedness or the subordination agreements related thereto and (b) distributions to Holdings from funds legally available for such purpose, in an amount equal to mandatory payments of principal and interest, if any, due on the Orcal Notes unless such payments are prohibited by the terms of such Indebtedness or the subordination provisions related thereto provided such distributions shall not be permitted to be made prior to the date upon which Holdings must make such payments to the holder(s) of the Orcal Notes and for which adequate provisions must be made for insuring that such payments on the Orcal Notes are made by Holdings through a disbursement direction agreement for direct funding or some similar alternative arrangement acceptable to the Agent; and
(iv) cash dividends or distributions on the Capital Stock of the Borrower to fund actual out-of-pocket ordinary administrative expenses, franchise taxes, accounting expenses and legal expenses of Holdings which dividends shall not exceed $500,000 in any fiscal year; provided, however, that:
(1) the Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, described in clauses (i) no through (iii) above shall not be permitted if either a Default or Event of an Unmatured Default shall have occurred and be continuing at the date of declaration or payment thereof or would result therefrom;
(2) the amount of Restricted Junior Payments permitted to be made pursuant to clause (i) above shall be determined after the Agent's and the Lenders' receipt of the audited financial statements to be delivered pursuant to Section 6.1(a)(iii) (and the related Officer's Certificate pursuant to Section 6.1(A)(iv)) for the immediately preceding fiscal year and no earnings or income for any period shall be included in such calculation until receipt of the above-reference audited financial statements for such period;
(3) the Restricted Junior Payments described in clause (iii)(b) above shall not be permitted to be made until after the Agent's and the Lenders' receipt of: (1) the audited financial statements to be delivered pursuant to Section 6.1(a)(iii) (and the related Officer's Certificate pursuant to Section 6.1(A)(iv)) for the immediately preceding fiscal year; (2) the unaudited quarterly financial statements to be delivered pursuant to Section 6.1(a)(ii) (and the related Officer's Certificate pursuant to Section 6.1(A)(iv)) for the immediately preceding fiscal quarter and (ii3) the sum unaudited monthly financial statements to be delivered pursuant to Section 6.1(A)(i) (and the related Officer's Certificate pursuant to Section 6.1(A)(iv)) for the immediately preceding fiscal month (other than in connection with the annual principal payment to be made under such clause (iii)(b)), all of which financial statements shall reflect that no Default or Unmatured Default shall exist prior to or after taking into account the amount effect of any such payment; and
(4) In addition to the requirements set forth in clause (i) above, Restricted Junior Payment and Payments described in clause (i) above shall not be permitted to be made unless (A) the aggregate amount of all prior such Restricted Junior Payments made described in reliance on this clause (ei) shall consisting of Holdings' Dividends and Subordinated Interest Payments is not exceed 50% greater than the aggregate amount of additional Subordinated Intercompany Indebtedness loaned by Holdings to the Borrower’s Borrower on the date of such distributions; or (B) if the aggregate Consolidated amount of such Restricted Junior Payments described in clause (i) consisting of Holdings' Dividends and Subordinated Interest Payments exceeds the aggregate amount of additional Subordinated Intercompany Indebtedness loaned by Holdings to the Borrower on the date of such distributions (such excess being herein, the "Net Income for all completed Fiscal Years for which Distribution"):
(I) in addition to the audited financial statements required by Section 5.01(bpursuant to clause (2) above, the Agent and the Lenders shall have been delivered, commencing with received the Fiscal Year unaudited quarterly financial statements to be delivered pursuant to Section 6.1(A)(ii) (and the related Officer's Certificate pursuant to Section 6.1(A)(iv)) for the fiscal quarter ending December 31, 2012, taken as a single accounting period and immediately preceding the proposed date of such Net Distribution; and
(iiiII) the Borrower shall have delivered demonstrated to the Administrative Agent a certificate satisfaction of the chief financial officer Agent and the Lenders that if the proposed Net Distribution had been paid as of the Borrower demonstrating compliance with clauses (i) and (ii) aboveend of the immediately preceding fiscal quarter, together with, in the case Fixed Charge Coverage Ratio as of clause (ii), reasonably detailed calculations in support thereofthe end of such quarter would not be less than 1.25 to 1.00.
Appears in 1 contract
Samples: Credit Agreement (SCP Pool Corp)
Restricted Junior Payments. The Borrower will not, shall not and will shall not permit any Subsidiary to, of its Subsidiaries which are Guarantors to declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that except:
(a) dividends or distributions to the Borrower on the Capital Stock of any of its Subsidiaries or to any of the Borrower's Subsidiaries from any other Subsidiary of the Borrower; provided, however, that Subsidiaries of the Borrower which are not Wholly-Owned Subsidiaries may pay dividends and make distributions only if the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, of the Borrower which is a holder of the Capital Stock with respect to which such dividend or distribution is paid or made receives its Equity Interests payable solely in additional Equity Interests, pro rata share thereof;
(b) any Subsidiary may declare and pay dividends or make other distributions with respect by the Borrower on its Capital Stock to its Equity Interests ratably to the holders of such Equity InterestsCapital Stock, (c) repurchases, redemptions, retirements or other acquisitions by the Borrower, for value, of any of its Capital Stock or warrants, rights or options to purchase or acquire shares of any class of such capital Stock, principal payments on, purchases, defeasance, redemptions, and prepayments of, decreases in or other acquisitions or retirements, for value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, of any Indebtedness of the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 that is junior in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers right of services payment to the Borrower and Obligations, other than the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as Senior Notes; provided that at the time of and thereof or immediately after giving effect to each such Restricted Junior Paymentthereto, (i) no Event of Default or Potential Event of Default shall have occurred and be continuing unwaived and (ii) the sum Borrower is able to incur at least $1.00 of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made additional Indebtedness in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing compliance with the Fiscal Year ending December 31provisions of Section 9.01 (other than clauses (a) through (n) thereof), 2012, taken as a single accounting period and (iii) the Borrower sum of (A) the aggregate amount of Restricted Junior Payments, including such proposed Restricted Junior Payment, made after the Issue Date (the amount expended for such purposes, if other than in Cash, being the fair market value of such property as determined reasonably and in good faith by the Board of Directors of the Borrower) plus (B) the aggregate amount of Investments permitted under Section 9.04(k) made after the Issue Date does not exceed the sum of: (x) fifty percent (50%) of the cumulative Consolidated Net Income (as defined in Section 1.02) (or if cumulative Consolidated Net Income (as defined in Section 1.02) shall have delivered be a loss, minus 100% of such loss) earned subsequent to the Administrative Agent Issue Date and on or prior to the date such Restricted Junior Payment occurs (the "Reference Date") (treating such period as a certificate single accounting period); plus (y) 100% of the chief financial officer aggregate net cash proceeds received by the Borrower from any Person (other than a Subsidiary of the Borrower demonstrating compliance with clauses Borrower) from the issuance and sale subsequent to the Issue Date and on or prior to the Reference Date of Qualified Capital Stock of the Borrower; plus (iz) and without duplication of any amounts included in clause (iiiii)(y) above, together with100% of the aggregate net cash proceeds of any equity contribution received by the Borrower from a holder of the Borrower's Capital Stock (excluding, in the case of clause clauses (iii)(y) and (z), any net cash proceeds from a Public Equity Offering used to redeem the Obligations and cash proceeds from the issuance of Qualified Capital Stock by, or any equity contribution from any Person, financed directly or indirectly using funds borrowed from the Borrower or any Subsidiary of the Borrower until and to the extent such borrowing is repaid);
(c) acquisitions of any shares of Capital Stock of the Borrower, either (i) solely in exchange for shares of Qualified Capital Stock of the Borrower or (ii) through the application of net proceeds of a substantially concurrent sale for Cash (other than to a Subsidiary of the Borrower) of shares of Qualified Capital Stock of the Borrower; in either case provided that no Event of Default or Potential Event of Default shall have occurred and be continuing unwaived;
(d) repurchases by Borrower of shares of its common Capital Stock in connection with the repurchase provisions of the ESOP as in effect on the Closing Date (subject to changes in the ESOP to reflect requirements of ERISA or other Requirements of Law); and
(e) repurchases by Borrower of (i) its common Capital Stock from former employees, officers and directors of the Borrower and (ii) 125,714 shares of its common Capital Stock issued in connection with the Borrower's acquisition of Technology Applications, Inc. for an amount which, when aggregated with payments by the Borrower of up to $2,500,000 in withholding and/or payroll taxes upon the lapse of deferrals of deferred stock and stock equivalent accounts, does not exceed $3,000,000 in any calendar year; provided that, if less than $3,000,000 is used for such payments and repurchases in any calendar year, the amount equal to $3,000,000 minus the amount of such payments and repurchases made in such year may be used for such purposes in subsequent calendar years. For purposes of determining the aggregate amount of Restricted Junior Payments made after the Issue Date as described in Section 9.06(c)(iii), reasonably detailed the amount of all Restricted Junior Payments and taxes described in Section 9.06(e) made or paid which are of the type described in this Section 9.06 shall be included in such calculation and the amounts received by the Borrower from the sale by the Borrower of common Capital Stock to the ESOP that constitute Disqualified Capital Stock shall be credited against the amounts calculated pursuant to Section 9.06(d). The Borrower shall deliver to the Agent not later than the date of making any Restricted Junior Payment, an officer's certificate signed by a Responsible Officer stataing that such Restricted Junior Payment complies with this Section 9.06 and setting forth in reasonable detail the basis upon which the required calculations in support thereofwere computed, which calculations may be based upon the Borrower's latest available internal quarterly Financial Statements.
Appears in 1 contract
Samples: Credit Agreement (Dyncorp)
Restricted Junior Payments. The Borrower will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, Make any Restricted Junior Payment; provided, or incur any obligation (contingent or otherwise) to do sohowever, except that that, so long as it is permitted by applicable law,
(a) the any Restricted Subsidiary of Borrower that is a Guarantor may make Restricted Junior Payments to Borrower or any another Restricted Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, of Borrower that is a Guarantor;
(b) any Restricted Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries that is not a Guarantor may make Restricted Junior PaymentsPayments to Borrower or another Restricted Subsidiary of Borrower;
(c) any non-wholly owned Restricted Subsidiary may make cash Restricted Junior Payments to its shareholders, not exceeding $100,000,000 members or partners generally, so long as Borrower or its respective Restricted Subsidiary which owns the Capital Stock in the aggregate for any Fiscal Yearnon-wholly-owned Restricted Subsidiary paying such Restricted Junior Payments receives at least its proportionate share thereof (based upon its relative holding of the Capital Stock in the Restricted Subsidiary paying such Restricted Junior Payments and taking into account the relative preferences, if any, of the various classes of Capital Stock of such Restricted Subsidiary);
(d) so long as no Event of Default has occurred and is continuing or would be caused thereby, the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services preceding provisions shall not prohibit Permitted Tax Distributions;
(I) to the extent actually used substantially concurrently by Parent to pay such taxes, costs and expenses, payments by Borrower and the Subsidiaries to or on behalf of Parent in an amount sufficient to pay all franchise taxes and other fees required to satisfy tax withholding obligations related maintain the legal existence of Parent and (II) payments by Borrower to or on behalf of Parent in an amount sufficient to pay all out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Parent, in the case of preceding clauses (I) and (II) in an aggregate amount not to exceed $250,000 in any period of 12 consecutive months; and
(f) prior to the vestingoccurrence of the Amendment Effective Date, settlement or exercise of such Equity Interests or rightson any interest payment date, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments to Parent solely with the Net Cash Proceeds of interest payments received by Borrower in cash pursuant to the Parent Intercompany Loan so long as at the time of and (i) after giving effect to each such Restricted Junior PaymentPayment the aggregate amount of cash of Borrower and its Restricted Subsidiaries (calculated on a pro forma basis after giving effect to the payment of interest by Borrower on such date) shall be no less than $5,000,000, (iii) the proceeds of such Restricted Junior Payment shall, substantially concurrently therewith, be invested by Parent into the business of Golden Nugget and its “Restricted Subsidiaries” (as defined in the Existing Credit Agreement) and (iii) no Default or Event of Default shall have has occurred and is continuing or would result therefrom. The amount of all Restricted Junior Payments (other than cash) will be continuing and (ii) the sum Fair Market Value on the date of the amount such Restricted Junior Payment and of the aggregate amount of all prior 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 Payments made in reliance on Payment. The Fair Market Value of any assets or securities that are required to be valued by this clause (e) shall not exceed 50% covenant will be determined by the Board of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing Directors of Borrower whose resolution with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have 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 Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofFair Market Value exceeds $40,000,000.
Appears in 1 contract
Samples: Credit Agreement (Golden Nugget Online Gaming, Inc.)
Restricted Junior Payments. The Borrower will notNo Loan Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries or Affiliates through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, make any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that that:
(a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, [Reserved];
(b) any Subsidiary Borrower may declare make Initial Earnout Payments and pay dividends or make other distributions with respect to its Equity Interests ratably Milestone Payments in cash to the holders extent expressly required by the Stock Purchase Agreement in respect of such Equity Intereststhe Fiscal Year ended December 31, 2007; provided, that (ci) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 shall be in compliance with the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights financial covenants set forth in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and Section 6.07 on a pro forma basis after giving effect to each such Restricted Junior Payment, 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 (ias determined in accordance with Section 6.07(c) and evidenced by delivery of the relevant Compliance Certificates in accordance with Section 5.01(d)) and (ii) no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(c) 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 as required by the Stock Purchase Agreement in respect of 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 prior to the date of determination; 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 accordance with Section 6.07(c) and evidenced by delivery of the relevant Compliance Certificates in accordance with Section 5.01(d)), (ii) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (iii) at the time of the making of such payment and after giving effect thereto, the amount, if any, by which (1) the Revolving Commitments (as defined in the First Lien Credit Agreement) exceeds (2) the sum of the Total Utilization of Revolving Commitments (as defined in the First Lien Credit Agreement) 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 such Restricted Junior Payment and equal to (i) the aggregate principal amount of all prior 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) of the First Lien Credit Agreement and Section 2.27(c) of this Agreement 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 made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to its direct parent to the Administrative Agent a certificate of the chief financial officer of the extent its parent is Borrower demonstrating compliance with clauses (i) and or any other Subsidiary, (ii) aboveany such Subsidiary that is not a Wholly Owned Subsidiary may make distributions to Persons that are not Loan Parties, together withpro 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 pro rata the Loan Parties shall receive at least their pro rata share); provided that that in the case of clause (ii), reasonably detailed calculations (i) Borrower and its Subsidiaries shall be in support thereof.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 accordance with Section 6.07(c) and evidenced by delivery of the relevant Compliance Certificates in accordance with Section 5.01(d)) and (ii) no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(g) Borrower may make Restricted Junior Payments in 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 exercise of such Warrants equal to or in excess of 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 an amount equal to the 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 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 accordance with Section 6.07(c) and evidenced by delivery of the relevant Compliance Certificates in accordance with Section 5.01(d)) and (iv) no Default or Event of Default shall have occurred and be continuing or 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
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (Paramount Acquisition Corp)
Restricted Junior Payments. The Borrower will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends Declare or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make any Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Yearexcept:
(i) each Loan Party may make dividends or distributions to other Loan Parties;
(ii) provided that no Application Event has occurred and is continuing immediately prior to such Restricted Junior Payments, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers each Subsidiary of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the a Borrower may make additional cash Restricted Junior Payments so long dividends or distributions to that Borrower;
(iii) provided that (x) no Default or Event of Default has occurred or would result therefrom and (y) (I) the Interest Coverage Ratio is greater than or equal to 3.0:1.0 at such time or (II) the Interest Coverage Ratio is less than 3.0:1.0 at such time, but both immediately before and immediately after giving effect to such dividends or distributions Borrowers are in compliance with the Fixed Charge Coverage Ratio of greater than or equal to 1.0:1.0 and Administrative Borrower shall have delivered to Agent a certificate of a financial officer of Administrative Borrower certifying as to compliance with this clause (ii)(y)(II) and demonstrating (in reasonable detail) the calculations thereof, Boise Cascade may make the following dividends and distributions to the extent not otherwise prohibited under this Agreement:
(A) Boise Cascade may pay any dividends or distributions within 60 days after the date of declaration thereof if (1) at the date of declaration such dividend or distribution would have complied with this Section 6.9(a), (2) at the time of and after giving effect to each such Restricted Junior Payment, (i) dividend or distribution no other Default or Event of Default shall have occurred and be continuing (or result therefrom), and (ii3) Boise Cascade has public shareholders on the sum date of declaration of such dividends or distributions;
(B) repurchases of Stock deemed to occur upon exercise of stock options if such Stock represent a portion of the amount exercise price of such Restricted Junior Payment and options; and
(C) cash payments in lieu of the aggregate amount issuance of all prior Restricted Junior Payments made fractional shares in reliance on this clause (e) connection with the exercise of warrants, options or other securities convertible into or exchangeable for Stock of Boise Cascade or in connection with a merger, consolidation, amalgamation or other combination involving Boise Cascade; provided, however, that any such cash payment shall not exceed 50% be for the purpose of evading the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which limitation of this Section 6.9 (as determined in good faith by the financial statements required by Section 5.01(bboard of directors or equivalent governing body of Boise Cascade); and
(D) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered Boise Cascade may make any other additional dividends or distributions to the Administrative Agent extent not otherwise prohibited under this Agreement.
(b) Create or suffer to exist any encumbrance or restriction on the ability of a certificate Subsidiary of any Borrower to make any dividends or distributions to that Borrower, except for restrictions under the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) aboveLoan Documents, together withunder Applicable Law, in the case of clause (ii), reasonably detailed calculations in support thereofor pursuant to a Permitted Restricted Agreement.
Appears in 1 contract
Restricted Junior Payments. The Borrower will notNeither Intermediate Holdings nor any Company shall, and will not nor shall it permit any Subsidiary of its Subsidiaries through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and or shall be caused thereby, Companies may make Restricted Junior Payments to Intermediate Holdings consisting of cash distributions or dividends (i) on the Closing Date, in an aggregate amount not to exceed $18,900,000 to permit Intermediate Holdings to make the Closing Date Parent Distribution so long as such cash distributions or dividends by Companies to Intermediate Holdings do not exceed the amount actually paid by Intermediate Holdings to Parent in respect thereof, (ii) for further distribution to Parent so long as after giving effect to any such cash distributions or dividends, the sum Credit Parties are in compliance with the financial covenants in Section 6.8 on a pro forma basis, (iii) in an aggregate amount not to exceed $250,000 in any trailing twelve month period, to the extent necessary to permit Intermediate Holdings to pay general administrative costs and expenses, and (iv) to the extent necessary to permit Intermediate Holdings to discharge the consolidated tax liabilities of Intermediate Holdings and its Subsidiaries, in each case so long as Intermediate Holdings applies the amount of any such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered such purpose. Notwithstanding anything herein to the Administrative Agent a certificate contrary, no amount shall be permitted to be distributed Intermediate Holdings or any of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) aboveits Subsidiaries to pay, together or otherwise in connection with, in any Tax resulting from the case cancellation or discharge of clause (ii), reasonably detailed calculations in support thereofIndebtedness.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Newtek Business Services Corp.)
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that (a) the Borrower or any Subsidiary of Holdings may declare and pay dividendsmake Restricted Junior Payments to any Credit Party that is a Domestic Subsidiary of Holdings (and, and make in the case of a Restricted Payment by a non-wholly owned Subsidiary of Holdings, to each other distributions, with respect to its owner of Equity Interests payable solely in additional Equity Interestsof such Subsidiary based on their relative ownership interests), (b) any Subsidiary of Holdings that is not a Subsidiary Guarantor may declare and make Restricted Payments to any other Subsidiary of Holdings that is not a Subsidiary Guarantor, (c) Holdings may pay dividends or make other distributions with respect to in the form of its Equity Interests ratably to the holders of such common Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Holdings may repurchase its Equity Interests owned by directors, officers, consultants, employees and (ii) former employees of Holdings or make payments to directors, officers, consultants, employees and former employees of Holdings in connection with stock options, stock appreciation rights, “phantom” stock plans or similar equity incentives or equity based incentives pursuant to management or other incentive plans or in connection with the sum termination, death or disability of the amount such Restricted Junior Payment directors, officers, consultants and the employees in an aggregate amount not to exceed $2,000,000 (excluding the principal amount of all prior Restricted Junior Payments made subordinated notes issued by Holdings under Section 6.1(p)) in reliance on this clause any Fiscal Year and (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Holdings may make payments pursuant to a Management Agreement as permitted in accordance with Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii6.11(h), reasonably detailed calculations in support thereof.
Appears in 1 contract
Restricted Junior Payments. The Borrower will notDirectly or indirectly through any manner or means, and will not permit any Subsidiary todeclare, declare order, pay, make or makeset apart, or agree to pay declare, order, pay, make or makeset apart, directly or indirectly, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Restricted Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders Borrower or any Restricted Subsidiary and to each other holder of equity therein, (b) the Borrower may make payments in an aggregate amount not to exceed $25,000,000 in any Fiscal Year to Holdings to permit Holdings to purchase common stock or common stock options of Holdings from present or former officers or employees of Holdings or any Restricted Subsidiary upon the death, disability or termination of employment of such Equity Interestsofficer or employee, (c) the Borrower and its Subsidiaries Holdings may make Restricted Junior Payments, not exceeding $100,000,000 ; provided that in the case of this clause (c), both immediately prior to and after giving effect thereto (i) no Event of Default shall exist or result therefrom, (ii) the Total Leverage Ratio shall be equal to or less than 3.50 to 1.00, calculated in accordance with Section 7.07 immediately prior to and after giving effect to such Restricted Junior Payment as of the last day of the Fiscal Quarter most recently ended and (iii) the aggregate for any Fiscal Yearamount of Restricted Junior Payments made pursuant to this Section 7.04(c) shall not exceed the Available Amount that is Not Otherwise Applied, (d) to the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directorsextent constituting Restricted Junior Payments, officers, employees or other providers of services to the Borrower and the Restricted Subsidiaries in an amount required to satisfy tax withholding obligations related to the vestingmay enter into and consummate transactions expressly permitted by any provision of Sections 7.02, settlement 7.08, 7.11(b) or exercise of such Equity Interests or rights7.11(c), and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash payments to Holdings the proceeds of which shall be used to pay franchise taxes and other fees, taxes and expenses, including, without limitation, administrative and overhead costs, required to maintain the corporate or legal existence of Holdings, including, without limitation, D&O insurance premiums and SEC regulatory costs and expenses, and (f) the Borrower and Holdings may make other Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the sum of the amount such Restricted Junior Payment and the in an aggregate amount of for all prior such Restricted Junior Payments made in reliance on under this clause (ef) shall not to exceed 50the greater of (x) $15,000,000 and (y) 11.0% of Consolidated Adjusted EBITDA for the Borrower’s aggregate Consolidated Net Income for all completed four Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year Quarter period ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer last day of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofmost recently ended Fiscal Quarter.
Appears in 1 contract
Samples: Credit Agreement (Altisource Portfolio Solutions S.A.)
Restricted Junior Payments. The Borrower will not, not and will not permit any Subsidiary to, declare or make, or agree of -------------------------- its Subsidiaries to pay or make, directly or indirectlyindirectly declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that that:
(a) Borrower may make payments and distributions to Company that are used by Company 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 return by Company shall not be greater, nor the aggregate receipt of tax benefits less, than they would have been had Borrower not filed a consolidated return with Company;
(b) a Subsidiary of Borrower may make dividends or other distributions to the Borrower or any other Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, Borrower; and
(c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) provided no Default or Event of Default shall have has occurred and be is continuing or would arise as a result thereof, at any time subsequent to the first anniversary of the Closing Date, so long as the Stockholder's Equity exceeds Borrower's Required Equity (as determined in accordance with the Schedule 1 of Borrower's most recent Borrowing Base Certificate) by the sum of (i) 115% of such Required Equity and (ii) the sum outstanding principal balance of loans made by Borrower pursuant to subsection 3.3(d) (the "Equity Ceiling"), Borrower may declare and pay dividends and may make other distributions to its holders of capital stock in an amount equal to the amount such Restricted Junior Payment by which said Stockholder's Equity exceeds the Equity Ceiling, and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the accordance with applicable law and Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period 's organizational and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofcorporate documents.
Appears in 1 contract
Samples: Credit Agreement (MCG Capital Corp)
Restricted Junior Payments. The Borrower will Company shall not, and will shall not permit any Subsidiary Guarantor to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior Payment, or incur any obligation Payment except,
(contingent or otherwise) to do so, except that (ai) the Borrower Company or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary Guarantor may declare and pay dividends or make other distributions with respect to its Equity Interests ratably Capital Stock payable solely in Capital Stock;
(ii) any Guarantor may declare and pay dividends or other distributions to the holders of such Equity Interests, another Loan Party;
(ciii) the Borrower and its Subsidiaries Company or any Specified Guarantor may make Restricted Junior PaymentsPayments to present or former officers, directors, consultants or employees (or any affiliates, spouses, former spouses, other Immediate Family Members, successors, executors, administrators, heirs, legatees or distributees thereof) of the Company, such Specified Guarantor and their respective Subsidiaries in an amount not exceeding to exceed (A) $100,000,000 2,500,000 in the aggregate for any Fiscal Year, plus (dB) all net cash proceeds obtained from any key-man life insurance policies received by the Company, such Specified Guarantor and their respective Subsidiaries during such calendar year, plus (C) 100 percent (100%) of the unused amount in subclause (A) of this clause (iii) in the immediately prior Fiscal Year; provided, that cancellation of Indebtedness owing in connection with a repurchase of Capital Stock of the Company or such Specified Guarantor will not be deemed to constitute a Restricted Junior Payment for purposes of this covenant or any other provision of this Agreement;
(iv) to the extent constituting Restricted Junior Payments, the Company and the Guarantors may enter into and consummate transactions expressly permitted by any provision of Section 6.6 or 6.8 (other than Section 6.8(iii));
(v) repurchases of Capital Stock in the Company or any Guarantor deemed to occur upon exercise of stock options or warrants if such Capital Stock represent a portion of the exercise price of such options or warrants;
(vi) the Borrower Company may redeem or otherwise cancel Equity Interests or rights a portion of any equity compensation award in respect thereof granted to directorsconnection with the payment of withholding taxes by the Company and its Subsidiaries thereon on behalf of employees and directors of the Company and its Subsidiaries;
(vii) the Company may make other Restricted Junior Payments, officersso long as the Payment Conditions are satisfied;
(viii) the payment of cash in lieu of the issuance of fractional shares in connection with the exercise of warrants, employees options or other providers securities convertible into or exercisable for Capital Stock of services the Company;
(ix) the Company may distribute rights to holders of the Company’s common stock pursuant to a customary shareholder rights plan and the redemption of such rights for nominal consideration;
(x) Restricted Junior Payments made with proceeds of issuances of, or capital contributions with respect to, Capital Stock of the Company, to the Borrower and extent such proceeds were not utilized as the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vestingbasis for any other (i) Investment, settlement (ii) Restricted Junior Payment or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights (iii) payment in respect of Equity InterestsSubordinated Indebtedness or Indebtedness that is junior to the Obligations, and (e) the Borrower may make additional cash in each case, so long as such Restricted Junior Payments are made within 60 days of receipt of the applicable proceeds;
(xi) Restricted Junior Payments necessary to finance any Investment permitted to be made pursuant to Section 6.6 or any Specified Disposition; provided that such Restricted Junior Payment shall be made substantially concurrently with the closing of such Investment and any business, assets or Person acquired in connection with such Investment shall be contributed to the Company or a Subsidiary substantially concurrently with the closing of such Investment;
(xii) Specified Guarantor Restricted Junior Payments; and
(xiii) so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred is continuing or would result therefrom and be continuing and (ii) the sum Company is in compliance on a Pro Forma Basis for the most recently ended four fiscal quarter period of the amount Company for which financial statements have been delivered pursuant to Section 5.1(a) or (b) with the Financial Covenants at the time of such Restricted Junior Payment and the aggregate amount of all prior is made, other Restricted Junior Payments made in reliance on an amount not to exceed $5,000,000 per Fiscal Year. For purposes of determining compliance with this clause covenant, in the event that a Restricted Junior Payment (eor portion thereof) shall not exceed 50% meets the criteria of more than one of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with categories described in clauses (i) and through (iixiii) above, together withthe Company will be entitled to classify such Restricted Junior Payment on the date of its payment such Restricted Junior Payment (or portion thereof) in any manner that complies with this Section 6.5 and may from time to time reclassify such Restricted Junior Payment (or portion thereof) in any manner in which such item could be incurred at the time of such reclassification. The amount of all Restricted Junior Payments (other than cash) shall be the fair market value on the date of such Restricted Junior Payment of the asset(s) or securities proposed to be paid, in transferred or issued by the Company or Guarantor, as the case may be, pursuant to such Restricted Junior Payment. The fair market value of clause (ii)any cash Restricted Junior Payment shall be its face amount, reasonably detailed calculations and the fair market value of any non-cash Restricted Junior Payment, property or assets other than cash shall be determined conclusively by the Company acting in support thereofgood faith.
Appears in 1 contract
Restricted Junior Payments. The Borrower will shall not, and will shall not permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation ; provided (contingent or otherwisei) to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers regularly scheduled payments of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights interest in respect of Equity Intereststhe Senior Notes in accordance with the terms of, and only to the extent required by the indenture or other agreement pursuant to which such Senior Notes were issued, as such indenture or other agreement may be amended from time to time to the extent permitted under subsection 7.12B, and (eii) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (iA) no Event of Default or Potential Event of Default shall have occurred and be continuing and (ii) on the sum of the amount date such Restricted Junior Payment and is declared or to be made, nor would an Event of Default or Potential Event of Default result from the aggregate amount making of all prior such Restricted Junior Payments made Payment, (B) after giving effect to the making of such Restricted Junior Payment Borrower shall be in reliance on this clause (e) shall not exceed 50% pro forma compliance with each of the Borrower’s aggregate Consolidated Net Income covenants contained in subsection 7.6 (including without limitation the Fixed Charge Coverage requirement) for all completed the most recent full Fiscal Years Quarter immediately preceding the date of such payment for which the relevant financial statements required by Section 5.01(binformation has been delivered pursuant to clauses (ii) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the of subsection 6.1, and (C) Borrower shall have delivered to the Administrative Agent an Officer’s Certificate in form and substance satisfactory to Administrative Agent (including a certificate calculation of the chief financial officer compliance with the covenants contained in subsection 7.6) certifying as to the accuracy of the Borrower demonstrating compliance with foregoing clauses (iA) and (iiB) above, together withBorrower may make Restricted Junior Payments described in subsections (i), in the case of clause (ii), reasonably detailed calculations in support thereof) and (iii) of the definition of Restricted Junior Payment.
Appears in 1 contract
Samples: Credit Agreement (Newmarket Corp)
Restricted Junior Payments. The Borrower will shall not, and will shall not permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided that (a) the Borrower or may make regularly scheduled payments of interest in respect of the Senior Subordinated Notes, the Senior Subordinated Convertible Notes and of any Subsidiary may declare Subordinated Indebtedness issued in accordance with Section 6.1(f) and pay dividends(g) hereof in accordance with the terms of, and make only to the extent required by, and subject to the subordination provisions contained in, the Senior Subordinated Indenture, the Senior Subordinated Convertible Note Indenture or the indenture pursuant to which such other distributionsSubordinated Indebtedness is issued, with respect as the case may be, in each case, as such indenture may be amended from time to its Equity Interests payable solely in additional Equity Intereststime to the extent permitted under Section 6.13(b), (b) the Borrower may make Restricted Junior Payments pursuant to and in accordance with stock option plans, stock purchase plans or other benefit plans for management or employees of the Borrower or any Subsidiary may declare 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, in an amount not to exceed $500,000 (plus any amounts received by the Borrower after the Closing Date and pay dividends prior to making such Restricted Junior Payment from the issuance of additional shares of its common stock to members of management or make other distributions with respect to employees of the Borrower and its Equity Interests ratably to the holders of such Equity InterestsSubsidiaries), (c) the Borrower and its Subsidiaries may make cash dividends and repurchase Capital Stock of the Borrower in an aggregate amount not to exceed, without duplication, (i) $20,000,000 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 Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity InterestsPayment, and (eii) the Borrower may make additional cash Restricted Junior Payments $40,000,000 per Fiscal Year so long as at the time of Consolidated Pro Forma Leverage Ratio shall not exceed 2.50 to 1.0 both before and after giving pro forma effect to each such Restricted Junior Payment, (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(f) 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 Payment and (ii) no Event of Default shall have occurred and be continuing or would otherwise arise as a result of any such Restricted Junior Payment and (e) so long as no Default or Event of Default shall have occurred and be continuing and (ii) or would result therefrom, the sum Borrower may make payments of fractional shares upon conversion of the amount such Restricted Junior Payment and Senior Subordinated Convertible Notes on or after the aggregate amount of all prior Restricted Junior Payments made Closing Date if required to do so by the holders thereof; provided that the payments referred to in reliance on this clause clauses (e) shall not exceed 50% of be permitted only to the Borrower’s aggregate extent the Borrower can demonstrate (A) that the Senior Consolidated Net Income for all completed Fiscal Years for which Leverage Ratio would be at least 0.50 lower than the financial statements required by applicable covenant level set forth in Section 5.01(b6.6(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as on a single accounting period pro forma basis after giving effect to such payment and (iiiB) the Borrower shall have delivered Availability of at least $20,000,000 after giving effect to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofsuch payment.
Appears in 1 contract
Samples: Credit Agreement (Pantry Inc)
Restricted Junior Payments. The Borrower will not, shall not and will shall not permit any Subsidiary of its Subsidiaries through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that that:
(a) Any Subsidiary of the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect ratably to its Equity Interests ratably to the holders of such Equity Interests, equity holders;
(cb) the The Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 Payments to its equity holders in the aggregate for any Fiscal Year, (d) form of dividends on the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries Borrower’s common stock in an aggregate amount required not to satisfy tax withholding obligations related to the vestingexceed $10,000,000 per annum, settlement or exercise of such Equity Interests or rightsprovided that, and may issue common Equity Interests to settle rights in respect of Equity Interestsimmediately prior to, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(c) The Borrower may make Restricted Junior Payments up to each an amount not to exceed the Cumulative Amount as in effect immediately prior to the making of such Restricted Junior PaymentPayments, provided that (A) immediately prior to, and after giving effect thereto, (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (ii) the sum Borrower and its Subsidiaries shall be in compliance on a pro forma basis with the financial covenants set forth in Section 7.07 and with a Total Net Leverage Ratio of 2.50:1.00 or less, in each case, as of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% last day of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period Quarter most recently ended and (iiiB) the Borrower shall have delivered to the Administrative Agent a certificate Compliance Certificate, together with all relevant financial information reasonably requested by Administrative Agent, demonstrating in reasonable detail the calculation of the chief financial officer Cumulative Amount immediately prior to the making of such Restricted Junior Payment and the amount thereof elected to be so applied and evidencing compliance with Section 7.07 and the Total Net Leverage Ratio as required under clause (A)(ii) above;
(d) The Borrower may make other Restricted Junior Payments in an aggregate amount of up to $25,000,000 during the term of this Agreement;
(e) the payment by the Borrower or any Subsidiary of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or giving the notice of the Borrower demonstrating compliance redemption, if on the date of declaration or notice the payment would have complied with clauses this Section 7.04 (i) and (ii) above, together withassuming, in the case of clause redemption, the giving of the notice would have been deemed to be a Restricted Junior Payment at such time and such deemed Restricted Junior Payment would have been permitted at such time); provided that any Restricted Junior Payment pursuant to this Section 7.04(e) shall be deemed to have utilized capacity under the exception that such Restricted Junior Payment would have been permitted to have been made in reliance of at the time of declaration or notice of redemption, as applicable;
(iif) the Borrower may declare or make a Restricted Junior Payment with respect to its Equity Interest payable solely in Qualified Equity Interests or redeem any of its Equity Interests in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests or through accretion or accumulation of such dividends on such Equity Interests;
(g) repurchase, redemption or other acquisition for value by the Borrower of, Equity Interests of the Borrower held by officers, directors or employees or former officers, directors or employees of the Borrower and any Restricted Subsidiary (or their transferees, estates or beneficiaries under their estates), reasonably detailed calculations upon their death, disability, retirement, severance or termination of employment or service; and
(h) repurchases of Equity Interests deemed to occur (a) upon the exercise of stock options, warrants, or similar rights if the Equity Interests represent all or a portion of the exercise price thereof or (b) in support thereofconnection with the satisfaction of any withholding Tax obligations incurred relating to the vesting or exercise of stock options, warrants, restricted stock units or similar rights.
Appears in 1 contract
Restricted Junior Payments. The Borrower will not, and will shall not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectlyindirectly -------------------------- declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur permit any obligation Subsidiary (contingent or otherwiseincluding the LLC) to do sodirectly or indirectly declare, order, pay, make or set apart any sum for any Restricted Junior Payment, except that that:
(aA) the Borrower or any Subsidiary The LLC may declare and pay dividends, and make other distributions, Restricted Junior Payments with respect to its Equity Interests payable solely membership interests to the extent set forth in additional Equity Interests, (b) any Subsidiary may declare the Company Agreement and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders purchase of such Equity Interestssugarbeets from Borrower, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at such expenses do not exceed the time of amounts set forth in the contract set forth as Exhibit D-7 to the Formation Agreement); and
(B) so long as before and after giving effect to each such Restricted Junior Paymentdistribution, (i) no Default or Event of Default shall have occurred and be continuing and (ii) continuing, the sum Borrower may make payments to its members in connection with the purchase of the amount sugarbeets from Borrower's members, so long as such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall payments do not exceed 50% the amounts to be received from the LLC pursuant to the Memorandum of Agreement set forth as Exhibit D-7 to the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which Formation Agreement), provided, that not less than three -------- Business Days prior to the financial statements required by Section 5.01(b) shall have been delivereddate of any such payments, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent Lender a certificate of the Borrower's chief financial executive officer setting forth in such form and with such specificity as shall be reasonably satisfactory to Lender the calculation of the amount of each such payments; and
(C) so long as before and after giving effect to each such distribution, no Event of Default shall have occurred and be continuing, following the completion of Borrower's audit for its Fiscal Year, Borrower demonstrating compliance may make tax distributions to its members in an amount not to exceed 30% of the taxable income realized by such members during such completed Fiscal Year, provided, -------- that not less than three Business Days prior to the date of any such distribution, Borrower shall have delivered to Lender a certificate of the Borrower's chief executive officer setting forth in such form and with clauses (i) and (ii) above, together with, in such specificity as shall be reasonably satisfactory to Lender the case calculation of clause (ii), reasonably detailed calculations in support thereofthe amount of each such distribution.
Appears in 1 contract
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries or Affiliates through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that that:
(a) (i) each Credit Party may make (A) regularly scheduled payments of principal, interest and fees as provided in the Borrower or any Subsidiary may declare Senior Secured Notes Indenture and pay dividends, the $125,000,000 Unsecured Debt Agreement as in effect on the date hereof and make other distributions, with respect to its Equity Interests payable solely in additional Equity Intereststhe Second Lien Documents (if any) and Subordinated Lien Documents (if any), (bB) any Subsidiary may declare voluntary prepayments of principal, interest, premium and pay dividends or make other distributions with respect to its Equity Interests ratably to fees on the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower Senior Secured Notes and the Subsidiaries in an amount required to satisfy tax withholding obligations related to $125,000,000 Unsecured Debt Agreement and any scheduled cash pay of the vesting, settlement or exercise of such Equity Interests or rights, Second Lien Obligations (if any) and may issue common Equity Interests to settle rights in respect of Equity Interests, and the Subordinated Lien Obligations (eif any) after the Borrower may make additional cash Restricted Junior Payments Closing Date so long as at the time of such payment and after giving effect thereto, the Fixed Charge Coverage Ratio is greater than 1.10 to 1.00 and Excess Availability is at least $20,000,000 at the time of and after giving effect to each such Restricted Junior Paymentpayment (for purposes of this clause, Excess Availability shall include cash in one or more deposit accounts subject to Agent's first priority perfected security interests in excess of $10,000,000 in the aggregate), (iC) mandatory prepayments of principal on the Senior Secured Notes arising from dispositions of, or receipt of the insurance/condemnation proceeds in respect of, Notes Priority Collateral, and (D) payments of expenses, indemnities and other amounts (other than principal, interest or fees which are governed by clauses (A) through (D) above) required by the terms of the Senior Secured Notes Documents, and (ii) the holders of the Capital Stock of Holdings may purchase and sell Senior Secured Notes and/or $125,000,000 Unsecured Debt held by them from time to time in accordance with the terms of the Senior Secured Notes Indenture and the $125,000,000 Unsecured Agreement, as the case may be;
(b) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Euramax may make Restricted Junior Payments to Holdings (i) to the extent necessary to permit Holdings to pay general administrative costs and expenses (including directors' fees and expenses), franchise taxes and other fees reasonably necessary to maintain its corporate existence in an aggregate amount not to exceed $1,500,000 during any Fiscal Year and (ii) to pay expenses associated with the sum Permitted Restructuring and the other Transactions not to exceed $15,000,000 in the aggregate;
(c) any Subsidiary of Euramax may pay dividends or make other distributions with respect to any class of its issued and outstanding Capital Stock to Euramax or any other Subsidiary of Euramax or intercompany Indebtedness permitted by Section 6.1(b);
(d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Euramax may make Restricted Junior Payments to permit Holdings to purchase its Capital Stock for Cash from present or former officers and employees of Holdings or any of its Subsidiaries in accordance with the terms of its stock option plans upon the death, disability or termination of employment of such officer or employee in aggregate amount not to exceed $2,500,000 in any Fiscal Year and may make distributions to Holdings to fund such payments subject to the provisions of this clause (d);
(e) Holdings may pay dividends to its shareholders so long as at the time of such payment and after giving effect thereto, the Fixed Charge Coverage Ratio is greater than 1.10 to 1.00 (including the cash dividend amount to be paid as a Fixed Charge for such calculation) and Excess Availability is at least $20,000,000 at the time of and after giving effect to such payment (for purposes of this clause, Excess Availability shall include cash in one or more deposit accounts subject to Agent's first priority perfected security interests in excess of $10,000,000 in the aggregate);
(f) payments, dividends or distributions by Euramax and the Subsidiaries of Euramax to Holdings to enable Holdings to pay the amount of its actual federal, state or local Taxes to the extent such Taxes are attributable to the income or operations of Euramax or such Subsidiaries of Euramax, as applicable, may be made;
(g) payments in respect of Subordinated Indebtedness incurred after the date hereof but only to the extent that such payments are permitted pursuant to a subordination agreement in favor of Agent in form and substance to Agent in all respects may be made;
(h) payments, repayment, defeasance, redemption, retirement of (A) Indebtedness contractually subordinated to the Loans, and (B) any Subordinated Indebtedness of Euramax or any other Credit Party, or (C) any Indebtedness of Euramax or any other Credit Party that is unsecured, in each case in exchange for, or out of the amount net cash proceeds from, an incurrence of Permitted Refinancing Indebtedness;
(i) any Restricted Junior Payments made or deemed made in connection with the Permitted Restructuring;
(j) the making of any Restricted Junior Payment in exchange for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of Euramax or any direct or indirect parent of Euramax (other than any Capital Stock sold to a Subsidiary of Euramax or to an employee stock ownership plan or any trust established by Euramax) or from substantially concurrent contributions to the equity capital of Euramax, provided that, in each case, (i) such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% be made more than 30 days after the date of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been deliveredapplicable sale or contribution, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) aboveExcess Availability is at least $20,000,000 at the time of and after giving effect to such sale or contribution (for purposes of this clause, together with, Excess Availability shall include cash in one or more deposit accounts subject to Agent's first priority perfected security interests in excess of $10,000,000 in the case of clause aggregate) (iicollectively, including any such contributions, "Refunding Capital Stock"), reasonably detailed calculations in support thereof.
Appears in 1 contract
Samples: Senior Secured Revolving Credit and Guaranty Agreement (Euramax Holdings, Inc.)
Restricted Junior Payments. The Borrower will notNo Note Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that Payment except:
(a) the Borrower (i) any Subsidiary of Company may make Restricted Junior Payments to Company or any other Subsidiary of Company (subject to the terms of the Intercompany Note and Subordination), (ii) each Subsidiary may make Restricted Junior Payments to the holders of its Capital Stock on a pro rata basis and (iii) any Note Party may make Restricted Junior Payments to any other Note Party;
(b) the Company and each Subsidiary may declare and pay dividends, and make dividend payments or other distributions, with respect to its Equity Interests distributions payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders Capital Stock not constituting Disqualified Capital Stock of such Equity Interests, Person;
(c) the Borrower and its Subsidiaries Company may make payments of regularly scheduled interest on, and of principal at the scheduled maturity of, the 2025 Convertible Notes (and any Permitted Refinancing thereof) and of regularly scheduled interest and principal under the Term Loan Agreement (and any Permitted Refinancing thereof);
(d) the Company may pay the Revenue Interests, Additional Amounts (each as defined in the Healthcare Royalty Partners Facility as in effect on the date hereof) and any indemnity obligations owing thereunder, in each case, pursuant to the terms of the Healthcare Royalty Partners Facility as in effect on the date hereof;
(e) [Reserved];
(f) the repurchase or redemption of Capital Stock of the Company held by officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of a Note Party or any of its Subsidiaries, upon their death, disability, retirement, severance or termination of employment or service shall be permitted;
(g) the Company may make any Restricted Junior Payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Company or a substantially concurrent sale (other than to a Subsidiary of the Company) of, Capital Stock (other than Disqualified Capital Stock) of the Company;
(h) the repurchase of Capital Stock (i) deemed to occur upon the exercise of options, warrants or other convertible securities to the extent that such Capital Stock represent all or a portion of the exercise price thereof or (ii) deemed to occur upon the withholding of a portion of Capital Stock granted or awarded to any current or former officer, director, manager, employee or consultant (or permitted transferees, assigns, estates, trusts or heirs of any of the foregoing) to pay for taxes payable by such Person in connection with such grant or award (or the vesting thereof) shall be permitted;
(i) payments or distributions to dissenting stockholders pursuant to Requirements of Law in connection with any merger, amalgamation or consolidation with, or other acquisition of, another Person shall be permitted;
(j) to the extent constituting Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers payment of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights contingent liabilities in respect of Equity Interestsany adjustment of purchase price, earn outs, deferred compensation and similar obligations of the Company and its Subsidiaries in respect of Investments permitted under Section 4.19 shall be permitted;
(ek) the Borrower Company may make additional cash Restricted Junior Payments so long as payments pursuant to the terms of the Related Agreements;
(l) the Company may refinance Indebtedness with proceeds of Permitted Refinancing Indebtedness permitted to be incurred under Section 4.12;
(m) any Note Party may make payments in respect of any earn out obligations or seller financing indebtedness in accordance with any applicable Subordination Agreement; provided that, at the time of such Restricted Junior Payment and after giving effect to each such Restricted Junior Paymentthereto, (i) no Default or Event of Default shall have occurred and be continuing exist or would result therefrom and (ii) the sum of the amount after giving effect to such Restricted Junior Payment Payment, on a pro forma basis, the Note Parties are in compliance with the covenant set forth in Section 4.20 hereof;
(n) the Company may redeem and repay the 2025 Convertible Notes prior to their scheduled maturity solely with, and to the extent permitted by, the Requisite Holders;
(o) payments made or expected to be made in respect of withholding or similar taxes payable by any future, present or former employee, director, manager or consultant and any repurchases of Capital Stock in consideration of such payments including deemed repurchases in connection with the exercise of stock options and the aggregate amount vesting of all prior restricted stock and restricted stock units shall be permitted; and
(p) other Restricted Junior Payments made in reliance on an aggregate amount not to exceed $1,000,000 during the term of this Agreement shall be permitted; provided that this clause (ep) shall may not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing be used to make Restricted Junior Payments with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered respect to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses 2025 Convertible Notes (i) and (ii) above, together with, in the case of clause (iiany Permitted Refinancing thereof), reasonably detailed calculations in support the Term Loan (and any Permitted Refinancing thereof), or the Healthcare Royalty Partners Facility (and any Permitted Refinancing thereof).
Appears in 1 contract
Restricted Junior Payments. The Neither Borrower will not, and will not permit nor any Subsidiary to, member of the Borrower Corporate Group shall declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior Payment, except:
(i) payment of management fees, investment fees, professional services fees, expense reimbursements or incur any obligation (contingent or otherwise) other amounts to do so, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect AMC and/or GTCR required to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably be paid pursuant to the holders Services Agreement but not to exceed (y) $12,500 for each fiscal quarter until the year following the first year in which AMC achieves consolidated revenues of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding at least $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, 30,000,000; and (ez) thereafter $25,000 per fiscal quarter;
(ii) the Borrower may make additional distributions to AMC in any fiscal year, from funds legally available for such purpose, in an aggregate amount not to exceed the amount calculated pursuant to SCHEDULE 6.3(F)(ii) minus any amounts paid directly by the Borrower or any of its Subsidiaries to any Governmental Authority with respect to the Consolidated AMC Group's tax liability;
(iii) annual mandatory payments of interest, if any, due on the Permitted Subordinated Indebtedness (as permitted under SECTION 6.3(A)(ii)(6)) (other than Acquisition Subordinated Debt) unless such payments are prohibited by the terms of such Indebtedness or the subordination agreement or intercreditor agreement related thereto;
(iv) cash dividends or distributions on the Capital Stock of the Borrower to fund actual out-of-pocket ordinary administrative expenses, franchise taxes, accounting expenses, legal expenses, employee expenses, lease and office expenses, consultant expenses, investment banker expenses incurred by AMC on behalf of one or members of the Borrower Corporate Group (the allocation and payment of which complies with the terms of SECTION 6.2(P) above) which dividends shall not exceed $450,000 in the aggregate in any fiscal year; PROVIDED, HOWEVER, in the twelve (12) month period beginning six (6) months prior to and ending six (6) months after an initial public offering by the Borrower or AMC such dividends shall not exceed in the aggregate $1,000,000;
(v) cash dividends or distributions on the Capital Stock of the Borrower in an amount equal to payments made in connection with the mandatory repurchase of AMC Capital Stock from any Person having rights to put such Capital Stock to AMC in connection with termination of such Person's employment or management arrangements with AMC MINUS the aggregate of amounts received by AMC from the resale of such Capital Stock and cash capital contributions made to AMC for the purpose of effecting such repurchase, if and only if (x) the net amount of such payments, together with the aggregate amount of all other Restricted Junior Payments so long as at the time of made under this clause (v) in any twelve-month period does not exceed $1,000,000 and after giving effect (z) prior to each making any such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to PRO FORMA consolidated projections for the Administrative Agent a certificate period from the date of the proposed Restricted Junior Payment through the Termination Date, certified by the Borrower's chief financial officer or chief executive officer, which projections shall reflect, to the reasonable satisfaction of the Borrower demonstrating compliance Agent and the Required Lenders, that, after taking into account the effect of such Restricted Junior Payment, no Default shall be anticipated to occur during such period;
(vi) annual mandatory Contingent Purchase Price Payments in an amount not to exceed the amount which would be payable under the applicable Acquisition Agreements entered into at the time of the applicable Acquisition, without taking into account any amendment, modification, supplement or restatement of any such agreement or the adjustment of any such amount pursuant to the terms of any such Agreement resulting from a change of facts and circumstances after the Acquisition Closing Date with clauses respect thereto (iunless the Agent and the Lenders shall have consented to the terms thereof) and (ii) above, together with, in the case effect of clause (ii), reasonably detailed calculations in support thereof.which is to increase the amount or accelerate the time of payment of any such Contingent Purchase Price Payment;
Appears in 1 contract
Restricted Junior Payments. The Borrower will notDirectly or indirectly declare, and will not permit order, pay, make or set apart any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do soexcept that, except that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing and or would result therefrom (ii) other than in the sum case of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause pursuant to clauses (eiv) shall and (vi) below, which may be made whether or not exceed 50% a Default or Event of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) Default shall have been deliveredoccurred and is continuing or would result therefrom), commencing a Borrower or any Subsidiary of a Borrower or COI may make Restricted Junior Payments with respect to its common stock to the Fiscal Year ending December 31, 2012, taken as a single accounting period extent necessary (i) to permit Borrowers to pay the Obligations; (ii) to permit COI to make scheduled payments (but not prepayments) of interest in cash then due under and pursuant to the Senior Notes; (iii) the Borrower shall have delivered to permit CC to make scheduled payments (but not prepayments) of interest in cash then due under and pursuant to the Administrative Agent Senior PIK Notes; (iv) to permit CC to make payments in cash directly related to compliance by it with laws and regulations applicable to it by virtue of its status as a certificate publicly-held corporation; (v) to permit CC and/or COI to make optional prepayments or purchases of the chief financial officer Senior Notes and/or Senior PIK Notes, and related payments of interest and reasonable fees, costs and expenses related thereto, but solely directly out of the Borrower demonstrating compliance proceeds of the concurrent consummation of an issuance by CC for cash of its common stock, or options, warrants or rights with clauses respect to its common stock; (ivi) to permit CC and COI to make payments in cash in respect of Corporate Overhead; (vii) to permit CC to pay dividends in respect of (but not to effect any redemption or purchase of) its outstanding shares of Series F preferred stock, in an amount not in excess of $25,000 in any Fiscal Year; and (iiviii) above, together with, to permit any Borrower to pay expenses incurred in the case ordinary course of clause (ii), reasonably detailed calculations in support thereofbusiness.
Appears in 1 contract
Restricted Junior Payments. The Borrower will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, Make any Restricted Junior Payment; provided, or incur any obligation (contingent or otherwise) to do sohowever, except that that, so long as it is permitted by applicable law,
(a) the any Restricted Subsidiary of Borrower that is a Guarantor may make Restricted Junior Payments to Borrower or any another Restricted Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, of Borrower that is a Guarantor;
(b) any Restricted Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries that is not a Guarantor may make Restricted Junior PaymentsPayments to Borrower or another Restricted Subsidiary of Borrower;
(c) any non-wholly owned Restricted Subsidiary may make cash Restricted Junior Payments to its shareholders, not exceeding $100,000,000 members or partners generally, so long as Borrower or its respective Restricted Subsidiary which owns the Capital Stock in the aggregate for any Fiscal Yearnon-wholly-owned Restricted Subsidiary paying such Restricted Junior Payments receives at least its proportionate share thereof (based upon its relative holding of the Capital Stock in the Restricted Subsidiary paying such Restricted Junior Payments and taking into account the relative preferences, if any, of the various classes of Capital Stock of such Restricted Subsidiary);
(d) so long as no Event of Default has occurred and is continuing or would be caused thereby, the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services preceding provisions shall not prohibit Permitted Tax Distributions; and
(I) to the extent actually used substantially concurrently by ParentIntermediate Holdings to pay such taxes, costs and expenses, payments by Borrower and the Subsidiaries to or on behalf of ParentIntermediate Holdings in an amount sufficient to pay all franchise taxes and other fees required to satisfy tax withholding obligations related maintain the legal existence of ParentIntermediate Holdings and (II) payments by Borrower to or on behalf of ParentIntermediate Holdings in an amount sufficient to pay all out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of ParentIntermediate Holdings, in the case of preceding clauses (I) and (II) in an aggregate amount not to exceed $250,000 in any period of 12 consecutive months; and.
(f) prior to the vestingoccurrence of the Amendment Effective Date, settlement or exercise of such Equity Interests or rightson any interest payment date, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments to Parent solely with the Net Cash Proceeds of interest payments received by Borrower in cash pursuant to the Parent Intercompany Loan so long as at the time of and (i) after giving effect to each such Restricted Junior PaymentPayment the aggregate amount of cash of Borrower and its Restricted Subsidiaries (calculated on a pro forma basis after giving effect to the payment of interest by Borrower on such date) shall be no less than $5,000,000, (iii) the proceeds of such Restricted Junior Payment shall, substantially concurrently therewith, be invested by Parent into the business of Golden Nugget and its “Restricted Subsidiaries” (as defined in the Existing Credit Agreement) and (iii) no Default or Event of Default shall have has occurred and is continuing or would result therefrom. The amount of all Restricted Junior Payments (other than cash) will be continuing and (ii) the sum Fair Market Value on the date of the amount such Restricted Junior Payment and of the aggregate amount of all prior 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 Payments made in reliance on Payment. The Fair Market Value of any assets or securities that are required to be valued by this clause (e) shall not exceed 50% covenant will be determined by the Board of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing Directors of Borrower whose resolution with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have 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 Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofFair Market Value exceeds $40,000,000.
Appears in 1 contract
Samples: Credit Agreement (Golden Nugget Online Gaming, Inc.)
Restricted Junior Payments. The Borrower will Company shall not, and will shall not permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided that (a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries Company may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights mandatory payments in respect of Equity Intereststhe Convertible Subordinated Notes and the Convertible Series A Preferred Stock in accordance with the terms of, and (e) only to the Borrower 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 7.13, and the Subordination Agreement, as the case may be; provided, further, that Company may make additional cash Restricted Junior Payments payments for acquisitions of shares of its common stock from any Person in an aggregate amount not to exceed $50,000,000 in any Fiscal Year so long as at the time of and (i) after giving effect to each such Restricted Junior Paymentpayment, (i) no Default or Event of Default shall have occurred and be continuing and or Potential Event of Default exists at the time such payment is agreed upon or made (ii) the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (ior would result therefrom) and (ii) above, together with, except in the case of clause payments for acquisitions of its common stock (iia) from its current or former employees in an aggregate amount not to exceed $1,500,000 in any Fiscal Year and (b) from any Person in an aggregate amount not to exceed $7,500,000 in any Fiscal Year acquired for purposes of delivery to eligible employees in connection with purchases made pursuant to the Korn/Ferry International Employee Stock Purchase Plan, after giving pro forma effect to such payment, Company will be in compliance with the provisions of subsection 7.6 as of and for the most recently completed period of four consecutive Fiscal Quarters ending prior to such payment for which financial statements required by subsections 6.1(iii), reasonably detailed (iv) and (v) have been delivered (and Company has delivered to Administrative Agent an Officer’s Certificate so stating and attaching financial information and calculations in support thereofform and substance reasonably satisfactory to Administrative Agent required to confirm such statement).
Appears in 1 contract
Restricted Junior Payments. The Borrower will notNeither Company nor Holdings shall, and will not nor shall either permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except ; provided that (ai) Company may on the Borrower or any Subsidiary may declare and pay dividendsClosing Date make a dividend to Holdings in the amount of the Recapitalization Payment, and Holdings may make other distributions, with respect a dividend in the amount of the Recapitalization Payment plus the net proceeds of the Holdings Notes to its Equity Interests payable solely in additional Equity Interestsshareholders, (bii) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries Company may make Restricted Junior Payments, Payments to Holdings (a) in an aggregate amount not exceeding to exceed $100,000,000 300,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower extent necessary to permit Holdings to pay general administrative costs and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interestsexpenses (other than Management Fees), and (eb) to the Borrower may make additional cash Restricted Junior Payments extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in each case so long as at Holdings applies the time amount of and after giving effect to each any such Restricted Junior PaymentPayment for such purpose, (iiii) so long as no Event of Default or Potential Event of Default shall have occurred and be continuing and (ii) the sum of the amount such or shall be caused thereby, Company may make Restricted Junior Payment and Payments to Holdings to the extent necessary to permit Holdings to repurchase Holdings Capital Stock (or any options rights to acquire such Capital Stock) from any former or current employee of Holdings or its Subsidiaries so long as the aggregate amount of all prior such repurchases shall not exceed $10,000,000 in the aggregate, and Holdings may repurchase such Capital Stock using the proceeds of such Restricted Junior Payments by Company or, if such Restricted Payments are not made by Company in reliance on this clause sufficient amounts to effect such repurchase, Holdings may issue promissory notes in exchange for such Capital Stock and may subsequently redeem such promissory notes, and (eiv) so long as no Event of Default under any of subsection 8.1, 8.6 or 8.7 shall not exceed 50% have occurred and be continuing, Company may pay Management Fees with respect to and as provided under the terms of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofManagement Agreements.
Appears in 1 contract
Restricted Junior Payments. The Borrower will not, and will shall not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Junior Payment, except that, so long as the Facility Maturity Date has not been declared or incur any obligation (contingent automatically occurred and no Unmatured Event of Default or otherwise) to do soEvent of Default has occurred and is continuing or would result therefrom, except that (a) the Borrower or any Subsidiary may declare and pay dividendsmake Restricted Junior Payments to the holders of its membership interests from amounts available pursuant to Sections 2.04(a)(xii), 2.04(b)(vii) and make other distributions2.04(c)(x) or in accordance with Section 5.02(h) or may transfer any Zero Value Asset to the Transferor as an equity distribution; provided that:
(i) if no Unmatured Event of Default or Event of Default has occurred and is continuing, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary the Borrower may declare and pay dividends or make and other distributions to the Parent or the Transferor, in either case in cash or other property in or with respect to any taxable year of the Borrower (or any calendar year, as relevant) in amounts not to exceed 110% of the amounts that are required to be distributed by the Parent to (1) allow the Parent to satisfy the minimum distribution requirements imposed by Section 852(a) of the Code (or any successor thereto) to maintain its Equity Interests ratably eligibility to the holders of be taxed as a RIC for any such Equity Intereststaxable year, (c2) reduce to zero for any such taxable year its liability for federal income taxes imposed on (x) its investment company taxable income pursuant to Section 852(b)(1) of the Code (or any successor thereto), or (y) its net capital gain pursuant to Section 852(b)(3) of the Code (or any successor thereto), and (3) reduce to zero its liability for federal excise taxes for any such calendar year imposed pursuant to Section 4982 of the Code (or any successor thereto); and
(ii) the Borrower and its Subsidiaries may shall be permitted to make or declare a Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as Payment if at the time of any such Restricted Junior Payment and after giving effect to each such Restricted Junior Payment, thereto (iA) no Unmatured Event of Default or Event of Default shall have has occurred and be is continuing and (iiB) the sum of Advances Outstanding on such date do not exceed the amount Borrowing Base after giving effect to such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereof.Payment..
Appears in 1 contract
Samples: Loan and Servicing Agreement (BlackRock TCP Capital Corp.)
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Restricted Subsidiaries through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that that:
(a) the Borrower or any Subsidiary may declare and pay dividends, and make other distributions, with respect to its Equity Interests payable solely in additional Equity Interests, (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries Company may make Restricted Junior PaymentsPayments to Holdings to permit Holdings to make any Restricted Junior Payment otherwise permitted under this Section 6.05 at such time, not exceeding $100,000,000 in so long as Holdings promptly applies the aggregate amount of any such Restricted Junior Payment for any Fiscal Year, such purpose;
(b) Holdings may make Permitted Tax Payments when due;
(c) Company and Holdings may make the Closing Date Distribution;
(d) Holdings may make Permitted Equity Issuances;
(e) any Restricted Party may make scheduled payments of cash interest when due (at the Borrower may redeem or otherwise cancel Equity Interests or rights non-default rate) in respect thereof granted of any Junior Lien Indebtedness or Subordinated Indebtedness permitted to directorsbe incurred under Sections 6.01(x) or (y), officers, employees or other providers of services to the Borrower extent permitted by the applicable subordination agreement entered into between Administrative Agent and the Subsidiaries holder of such Indebtedness;
(f) any Restricted Party may make mandatory prepayments of any Junior Lien Indebtedness incurred under Section 6.01 pursuant to mandatory prepayment provisions that are substantially the same as the mandatory prepayment provisions set forth in Section 2.13, provided that any such mandatory prepayments of such Junior Lien Indebtedness may be made only to the extent such prepayments were waived or declined by any Lenders hereunder;
(g) (i) any Restricted Party may make Restricted Junior Payments to any other Credit Party (other than to Holdings), (ii) any Restricted Foreign Subsidiary may make Restricted Junior Payments to any other Restricted Foreign Subsidiary and (iii) any Joint Venture may make Restricted Junior Payments to each other owner of Capital Stock of such Joint Venture on a pro rata basis (or more favorable basis from the perspective of Company or such Restricted Subsidiary) based on their relative ownership interests; and
(h) other Restricted Junior Payments in an amount required not to satisfy tax withholding obligations related exceed the portion of the Available RJP Amount on such date that the Company elects to the vestingapply to this Section 6.05(h), settlement or exercise of such Equity Interests or rightsprovided, and may issue common Equity Interests to settle rights that, in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Paymentcase, (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (ii) the sum of the amount Leverage Ratio shall be less than 2.50:1.00, both before and after giving pro forma effect to such Restricted Junior Payment and the aggregate amount (including any corresponding reduction of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (iiCash), reasonably detailed calculations in support thereof.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Madison Square Garden Co)
Restricted Junior Payments. The Borrower will notNo Loan Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries or Affiliates through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, except that (a) the Borrower or may make regularly scheduled payments of interest in respect of any Subsidiary may declare and pay dividendsSubordinated Indebtedness in accordance with the terms of, and make only to the extent required by, and subject to the subordination provisions contained in, the indenture or other distributions, with respect agreement pursuant to its Equity Interests payable solely in additional Equity Interests, which such Subordinated Indebtedness was issued as such indenture or other agreement may be amended from time to time to the extent permitted under Section 6.14; (b) any Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests ratably to the holders of such Equity Interests, (c) the Borrower and its Subsidiaries may make Restricted Junior Payments, not exceeding $100,000,000 in the aggregate for any Fiscal Year, (d) the Borrower may redeem or otherwise cancel Equity Interests or rights in respect thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount required to satisfy tax withholding obligations related to the vesting, settlement or exercise of such Equity Interests or rights, and may issue common Equity Interests to settle rights in respect of Equity Interests, and (e) the Borrower may make additional cash Restricted Junior Payments so long as at the time of and after giving effect to each such Restricted Junior Payment, (i) no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Borrower may make Restricted Junior Payments (i) in an aggregate amount not to exceed $500,000 in any Fiscal Year, to the extent necessary to permit Holdings to pay general administrative costs and expenses and (ii) to the sum extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted Junior Payment for such purpose; (c) so long as no Default or Event of Default shall have occurred and be continuing or be caused thereby, Holdings may repurchase stock and options from any stockholder (x) in exchange for notes issued pursuant to Section 6.01(o), (y) in exchange for Capital Stock of Holdings or (z) in exchange for Cash and Cash Equivalents (and the aggregate amount of all prior Borrower may make Restricted Junior Payments made to Holdings) in reliance on this clause an amount not to exceed $10,000,000 in any Fiscal Year; $25,000,000 in the aggregate from the Closing Date to the date of determination; (d) the Borrower may make payments in respect of Management Fees not to exceed $2,500,000 in any Fiscal Year; and (e) shall not exceed 50% of the 108 Borrower may make Restricted Junior Payments (and Holdings may itself make Restricted Junior Payments with any such Restricted Junior Payments received by it from the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which ); provided that at the financial statements required time it is paid by Section 5.01(b) shall have been deliveredthe Borrower, commencing with before and after giving effect to such Restricted Junior Payments, the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofPayment Conditions are satisfied.
Appears in 1 contract
Restricted Junior Payments. The Borrower will notNo Credit Party shall, and will not nor shall it permit any Subsidiary of its Subsidiaries or Affiliates through any manner or means or through any other Person to, declare or make, or agree to pay or make, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that that:
(a) Borrower may (i) make regularly scheduled payments of interest or required prepayments of principal and interest in respect of the Senior Notes in accordance with the terms of the Senior Notes and the Senior Notes Indenture and (ii) prepay, redeem, retire or purchase the Senior Notes (A) pursuant to the Senior Notes Refinancing and/or the Senior Note Refinancing Third Lien Facility), (B) pursuant to an exchange of Equity Interests (that are not Disqualified Equity Interests) for such Senior Notes directly with the holders of such Senior Notes (provided that the principal amount of the Senior Notes exchanged shall be considered proceeds for purposes of the $75,000,000 threshold in Section 2.11(c)(y)) or (C) with the proceeds from the issuance of Equity Interests (that are not Disqualified Equity Interests) of the Borrower or any Subsidiary not required to prepay the Loans pursuant to Section 2.11(c));
(b) Borrower may declare and pay dividends, and make other distributions, with respect to dividends in the form of its Equity Interests payable solely in additional common Equity Interests, ;
(bc) any Subsidiary may declare and pay dividends or make other distributions with respect Restricted Junior Payments to its Equity Interests ratably to the holders of such Equity Interests, a Credit Party;
(cd) the Borrower and its Subsidiaries any Credit Party may make Restricted Junior Payments, not exceeding $100,000,000 Payments of the type described in the aggregate for any Fiscal Yearclauses (i), (dii) and (iii) of the Borrower may redeem or otherwise cancel Equity Interests or rights in respect definition thereof granted to directors, officers, employees or other providers of services to the Borrower and the Subsidiaries in an amount equal to the proceeds of Equity Interests not required to satisfy tax withholding obligations related prepay the Loans pursuant to the vesting, settlement or exercise of such Equity Interests or rights, and Section 2.11(c);
(e) Borrower may issue common Equity Interests to settle rights make Restricted Junior Payments in respect of Equity Interests (that are not Disqualified Equity Interests), the proceeds of which are used to prepay, redeem, retire or purchase the Senior Notes (and/or any Senior Note Refinancing indebtedness) in an amount equal to the Consolidated Interest Expense that would have accrued and been payable on the amount of Senior Notes (eand/or any Senior Note Refinancing indebtedness) so prepaid, redeemed, retired or purchased (such Consolidated Interest Expense not to exceed 8% per annum on the principal amount of the Senior Notes (and/or any Senior Note Refinancing indebtedness) so prepaid, redeemed, retired or purchased); and
(f) the Borrower Credit Parties may make additional cash Restricted Junior Payments so long as at of the time of and after giving effect to each such Restricted Junior Payment, type described in clauses (i) no Default or Event of Default shall have occurred and be continuing and ), (ii) the sum of the amount such Restricted Junior Payment and the aggregate amount of all prior Restricted Junior Payments made in reliance on this clause (e) shall not exceed 50% of the Borrower’s aggregate Consolidated Net Income for all completed Fiscal Years for which the financial statements required by Section 5.01(b) shall have been delivered, commencing with the Fiscal Year ending December 31, 2012, taken as a single accounting period and (iii) of the Borrower shall have delivered definition thereof in an amount not to exceed (A) $1,000,000 in the aggregate in any Fiscal Year and (B) $3,000,000 in the aggregate from the Closing Date to the Administrative Agent a certificate date of the chief financial officer of the Borrower demonstrating compliance with clauses (i) and (ii) above, together with, in the case of clause (ii), reasonably detailed calculations in support thereofdetermination.
Appears in 1 contract
Samples: Second Lien Credit and Guaranty Agreement (Movie Gallery Inc)
