Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, 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 for: (a) the declaration and payment of dividends or the making of other distributions by any Subsidiary of Borrower ratably to its direct equity holders; (b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness; (c) refinancings of Indebtedness permitted by Section 6.1; (d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed: (i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less (ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d); (e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants; (f) 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 Borrower or any direct or indirect parent company of Borrower; (g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options; (h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and (i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000.
Appears in 5 contracts
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, 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 for:
(a) the declaration and payment of dividends or the making of other distributions by any Subsidiary of Borrower ratably to its direct equity holders;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) 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 Borrower or any direct or indirect parent company of Borrower;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 200,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Datetime; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000.
Appears in 3 contracts
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.), Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Restricted Junior Payments. No Credit Party Neither the Partnership nor any Parent Guarantor shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment except forthat:
(a) the declaration Partnership and payment any other Parent Guarantor may pay or make Restricted Junior Payments (and Parent may make Restricted Junior Payments to its shareholders) in any period in an amount which would allow Parent to make Restricted Junior Payments not in excess of dividends or the making greater of other (i) the amount required to be distributed (assuming 100% Cash distributions by any Subsidiary Parent are required) during such period in order to maintain REIT status of Borrower ratably Parent and its REIT Subsidiaries and avoid entity-level taxes and (ii) 90% of the FFO of Parent Guarantors, Borrowers and their Subsidiaries and Joint Ventures (but, in the case of consolidated non-Wholly Owned Subsidiaries and Joint Ventures of Parent Guarantors or Borrowers, only to its direct equity holdersthe extent allocable (based on economic share and not necessarily the percentage ownership) to Parent Guarantors, Borrowers or their Wholly Owned Subsidiaries) for such period;
(b) transactions in the redemption, repurchase, retirement, defeasance or other acquisition ordinary course of any Equity Interests, including any accrued business in accordance with the Consolidated Cash Management System of Parent and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness its Subsidiaries shall be Refinancing Indebtednesspermitted;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) the Partnership and any other Parent Guarantor may pay or make Restricted Junior Payment Payments to permit Parent or any other Parent Guarantor to (i) pay for any tax liabilities, operating expenses and other corporate overhead in the repurchaseordinary course of business (including directors fees and expenses, retirement indemnification and similar items, franchise and other similar taxes and fees and expenses of debt or other acquisition equity offerings (whether successful or retirement for value not)) and (ii) purchase, redeem, retire or acquire Capital Stock (A) of Equity Interests (Parent Guarantors or the Partnership held as of the Closing Date by Persons other than Disqualified Equity InterestsSubsidiaries of Parent or issued to any such Person after the Closing Date pursuant to Section 6.8(h) and (B) of Borrower Parent (x) as contemplated by the Plan upon Parent’s exercise of the New GGP Post-Emergence Public Offering Clawback Election (as defined in the Plan) or (y) held by any future, present (at the time of such transaction) or former employee, director, officer or consultant employee of Borrower Parent or any of its Subsidiaries or any direct Joint Ventures (or indirect parent companies pursuant to any management equity plan the heirs, estate, family members, spouse or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount former spouse of any Restricted Junior Payments previously made with of the cash proceeds described foregoing) in subclause (i) the case of this clause (y) in an amount not in excess of $25,000,000 per Fiscal Year; and
(d);) to the extent constituting a Restricted Junior Payment, the Partnership and Parent Guarantors may make Investments not otherwise prohibited under the Credit Documents; and
(e) cashless repurchases of Equity Interests the Partnership and Parent Guarantors may make Restricted Junior Payments deemed to occur upon the non-cash exercise of stock options or warrants if such Equity Interests represent a portion and warrants, and the payment of the exercise price taxes in respect of such options or warrants;
(f) cash payments in lieu of issuing fractional shares in connection with the exercise of warrantsoptions, options or other securities convertible into or exchangeable for Equity Interests of Borrower or any direct or indirect parent company of Borrower;
(g) so long as no Default or Event of Default has occurred warrants and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000similar items.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (General Growth Properties, Inc.), Credit and Guaranty Agreement (New GGP, Inc.)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, 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, except for:
(a) the declaration and payment each Subsidiary may make Restricted Junior Payments consisting of dividends a dividend or the making of other distributions by any Subsidiary of Borrower ratably distribution with respect to its direct equity holders;
Equity Interests to the Borrower and its other Subsidiaries (and, in the case of non-wholly owned Subsidiaries to the Borrower and any of its other Subsidiaries and to each other owner of Equity Interest of such Subsidiary based on their relative ownership interest of the relevant class), (b) the redemptionBorrower and each Subsidiary may make Restricted Junior Payments of the type referred to in clause (iv) of the definition thereof to the Borrower or one or more other Subsidiaries, subject only to the subordination provisions, if any, applicable thereto, (c) the Borrower may pay Convertible Note Repayment Obligations then due and payable so long as (i) no Default or Event of Default shall have occurred and be continuing or shall be caused thereby and (ii) the Borrower shall have delivered to the Administrative Agent a compliance certificate signed by an Authorized Officer demonstrating pro forma compliance with the financial covenants in Section 6.07 after giving effect to the subject Restricted Junior Payment, (d) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the Borrower may repurchase, retirement, defeasance redeem or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, otherwise acquire or Subordinated Indebtedness of Borrower or retire for value any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries held by any current or former officer, director, consultant or employee of the Borrower or any direct of its Subsidiaries, or indirect parent companies his or her estate, spouse, former spouse or family member (or pay principal or interest on any Indebtedness issued in connection with such repurchase, redemption or other acquisition) pursuant to any management equity plan or subscription agreement, stock option plan agreement, shareholders’ agreement, similar agreement or any other management agreement pursuant to which such Equity Interests were acquired or employee benefit plan of any kind and pay the amount of withholding taxes owed by the recipient of such payment on account thereof, (e) the Borrower may make cash payments in the form of cash settlements with respect to the Spread Overlay Agreements in accordance with the terms thereof, and only to the extent required thereby, so long as the Borrower receives contemporaneously with or agreement within ninety (including90) days preceding such distribution aggregate cash payments in connection with such Spread Overlay Agreements of not less than the amount of such distribution, for (f) as set forth on Schedule 6.04 hereof, (g) the avoidance Borrower may refinance any Junior Financing with the proceeds of doubtthe Permitted Refinancing thereof, any principal (h) the Borrower may make payments or distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or disposition of assets that complies, if applicable, with the provisions of this Agreement, (i) so long as no Default or Event of Default shall have occurred and interest payable on any notes issued by be continuing, to the extent that such payment is not required to be used to make a mandatory prepayment pursuant to Section 2.14(c), the Borrower or any direct Subsidiary may purchase, redeem or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), acquire its outstanding Equity Interests or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection Indebtedness with the 2010 Transactions; providedNet Equity Proceeds received from a substantially concurrent issuance of new Equity Interests, that the aggregate amount of Restricted Junior Payments made under this clause (dj) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year Credit Party may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount of make any Restricted Junior Payments previously made with Payment on account of the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases repurchase of Equity Interests deemed to occur upon exercise of stock options options, warrants or warrants if similar rights or grant, vesting or lapse of restrictions on the grant of any other performance shares, restricted stock, restricted stock units or other equity awards to the extent that shares of such Equity Interests represent all or a portion of (i) the exercise or purchase price of such options options, warrants or warrants;
(f) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options similar rights or other securities convertible into equity awards and (ii) the amount of withholding taxes owed by the recipient of such award in respect of such grant, exercise, vesting or exchangeable for Equity Interests lapse of Borrower or any direct or indirect parent company of Borrower;
restrictions covered by clause (gi) and (k) so long as no Default or Event of Default has shall have occurred and is continuingbe continuing or shall be caused thereby, (i) the Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) make other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to during the term of this clause (h) Agreement not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause the sum of (i) of Section 6.6$25,000,000 plus (ii) if, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from both immediately before and after giving effect such payment, the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by Total Net Leverage Ratio is less than 3.50:1.00, the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000Available ECF Amount.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Hologic Inc), Credit and Guaranty Agreement (Gen Probe Inc)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make pay or set apart, or agree to declare, order, pay, make or set apartmake, any sum for any Restricted Junior Payment except for:
(a) the declaration and payment of dividends or the making of other distributions by any Subsidiary of Parent Borrower ratably to its direct equity holders;
(b) the making of 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;
(c) the redemption, repurchase, retirement, defeasance retirement or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereonthereon (“Treasury Capital Stock”), or Subordinated Indebtedness of Parent Borrower or any Equity Interests of any direct or indirect parent company of Parent Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Parent Borrower or any direct or indirect parent company of Parent Borrower to the extent contributed to Parent Borrower (in each case, other than any Disqualified Equity InterestsStock) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1“Refunding Capital Stock”);
(d) the redemption, repurchase, exchange, defeasance or other acquisition or retirement of (x) Subordinated Indebtedness of Parent Borrower or a Guarantor Subsidiary made in exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of Parent Borrower or a Guarantor Subsidiary or (y) Disqualified Stock of Parent Borrower made by exchange for, or out of the proceeds of the substantially concurrent sale of, Disqualified Stock of Parent Borrower, which, in each case, is incurred in compliance with Section 6.1(k) or 6.1(t) hereof;
(e) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity InterestsStock) of Parent Borrower or any of its direct or indirect parent companies held by any future, present or former employee, director, officer or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of Parent Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Parent Borrower or any direct or indirect parent company of Parent Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Parent Borrower or any direct or indirect parent company of Parent Borrower in connection with the 2010 Transactions; provided, however, that the aggregate amount of Restricted Junior Payments made under this clause (de) shall not exceed in any calendar year $25,000,000 20,000,000 (which shall increase to $40,000,000 subsequent to the consummation of a Qualified Public Offering (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year)); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i1) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of Parent Borrower and, to the extent contributed to Parent Borrower, the cash proceeds from the sale of Equity Interests of any of Parent Borrower’s direct or indirect parent companies, in each case to any future, present or former employees, directors, officers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of Parent Borrower or any of its Subsidiaries that occurs after the Original Closing Date and not in connection with the consummation of the Transactions; plus
(2) the cash proceeds of key man life insurance policies received by Parent Borrower or its Subsidiaries (or any direct or indirect parent company to the extent contributed to common equity of Parent Borrower) after the Original Closing Date; less
(ii3) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause clauses (i1) and (2) of this clause (de); provided further that cancellation of Indebtedness representing the consideration for the purchase of the Equity Interests of Parent Borrower or any of its direct or indirect parent companies owing to Parent Borrower or any of its Subsidiaries from any future, present or former employees, directors, officers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of Parent Borrower, any direct or indirect parent company, or any of Parent Borrower’s Subsidiaries in connection with a repurchase of Equity Interests of Parent Borrower or any of its direct or indirect parent companies will not be deemed to constitute a Restricted Junior Payment for purposes of this Section 6.4 or any other provision of this Agreement;
(ef) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (g) not to exceed (i) $150,000,000 in the aggregate since the Original Closing Date plus (ii) at any time on or after the third anniversary of the Original Closing Date, an additional $150,000,000 in the aggregate since the Original Closing Date; provided that, in the case of this clause (ii), the Leverage Ratio of Parent Borrower and its Subsidiaries, based on the most recent Compliance Certificate received by Administrative Agent pursuant to Section 5.1(c), would be less than 3.50:1.00 on a pro forma basis after giving effect to any Restricted Junior Payments made pursuant to this clause (g);
(h) any Restricted Junior Payment used to fund (or otherwise made in connection with) the Transactions to the extent permitted by Section 6.11(d) hereof;
(i) 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 Borrower or any direct or indirect parent company of Parent Borrower;
(gj) so long as no Default the declaration and payment of dividends or Event distributions by Parent Borrower to, or the making of Default has occurred loans to, Holdings (or any direct or indirect parent entities the sole direct or indirect assets of which consist of the Capital Stock of Holdings and is continuingcash) in amounts required for Holdings or any such direct or indirect parent companies to pay, in each case without duplication,
(1) franchise and excise taxes and other fees, taxes and expenses required to maintain their legal existence;
(2) foreign, federal, state and/or local income, franchise or similar tax liability attributable to the income of Parent Borrower and its Subsidiaries (and, to the extent of the amount actually received from its Unrestricted Subsidiaries, its Unrestricted Subsidiaries) in respect of consolidated, combined, unitary or affiliated tax returns filed by a direct or indirect parent of Parent Borrower; provided that in each case the amount of such payments in any Fiscal Year does not exceed (i) Borrower may repurchase shares the amount of Borrower’s common stock within six months before such taxes actually paid by Holdings or after any conversion date for Borrower Convertible Notessuch direct or indirect parent companies on account of such taxes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) the amount that Parent Borrower may repurchase shares and its Subsidiaries would be required to pay in respect of foreign, federal, state and local income and similar taxes for such Fiscal Year were Parent Borrower’s common stock within six months before , its Subsidiaries and its Unrestricted Subsidiaries (to the extent described above) to pay such taxes as a group separate from any such parent entity, reduced by any such taxes actually paid or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notesto be paid directly by Parent Borrower, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call optionsits Subsidiaries or its Unrestricted Subsidiaries;
(h3) customary salary, bonus and other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant benefits payable to this clause (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) officers and employees of Section 6.6, other than Investments under Holdings or any such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior direct or indirect parent company of Parent Borrower to the time extent such salaries, bonuses and other benefits are attributable to the ownership or operation of making Parent Borrower and its Subsidiaries;
(4) general operating and overhead costs and expenses of Holdings or any such Restricted Junior Paymentdirect or indirect parent company to the extent such costs and expenses are attributable to the ownership, operations or business of Parent Borrower and its Subsidiaries; and
(i5) Restricted Junior Payments reasonable fees and expenses owed by Holdings or any such direct or indirect parent company to the extent related to any unsuccessful equity or debt offering of Holdings or such parent entity;
(k) payments made pursuant to the Management Agreement as in connection with effect on the Pre-Merger Special Dividend and/or Original Closing Date to the Post-Merger Special Dividend extent permitted by clauses (g) or (j) of Section 6.11;
(l) the declaration and payment of dividends by Parent Borrower to Holdings (and by Holdings to its direct or indirect parent entities) on or around the Second Restatement Effective Date in an aggregate amount not to exceed $10,000,0001,250,000,000; and
(m) Restricted Junior Payments not to exceed the Cumulative Consolidated Net Income Amount, unless, at the time of and immediately after giving effect to such Restricted Junior Payment, on a pro forma basis, the Fixed Charge Coverage Ratio of the Parent Borrower for the most recently ended Test Period for which internal financial statements are available immediately preceding the date on which such Restricted Junior Payment is made, would not have been at least 2.00 to 1.00; provided, however, that, at the time of and after giving effect to any Restricted Junior Payment permitted under clauses (e), (g) and (m) of this Section 6.4, no Specified Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (IMS Health Holdings, Inc.), Credit and Guaranty Agreement (IMS Health Holdings, Inc.)
Restricted Junior Payments. No Credit Party Neither the Partnership nor any Parent Guarantor shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment except forthat:
(a) the declaration Partnership and payment any other Parent Guarantor may pay or make Restricted Junior Payments (and Parent may make Restricted Junior Payments to its shareholders) in any period in an amount which would allow Parent to make Restricted Junior Payments not in excess of dividends or the making greater of other (i) the amount required to be distributed (assuming 100% Cash distributions by any Subsidiary Parent are required) during such period in order to maintain REIT status of Borrower ratably Parent and its REIT Subsidiaries and avoid entity-level taxes and (ii) 90% of the FFO of Parent Guarantors, Borrowers and their Subsidiaries and Joint Ventures (but, in the case of consolidated non-Wholly Owned Subsidiaries and Joint Ventures of Parent Guarantors or Borrowers, only to its direct equity holdersthe extent allocable (based on economic share and not necessarily the percentage ownership) to Parent Guarantors, Borrowers or their Wholly Owned Subsidiaries) for such period;
(b) transactions in the redemption, repurchase, retirement, defeasance or other acquisition ordinary course of any Equity Interests, including any accrued business in accordance with the Consolidated Cash Management System of Parent and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness its Subsidiaries shall be Refinancing Indebtednesspermitted;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) the Partnership and any other Parent Guarantor may pay or make Restricted Junior Payment Payments to permit Parent or any other Parent Guarantor to (i) pay for any tax liabilities, operating expenses and other corporate overhead in the repurchaseordinary course of business (including directors fees and expenses, retirement indemnification and similar items, franchise and other similar taxes and fees and expenses of debt or other acquisition equity offerings (whether successful or retirement for value not)) and (ii) purchase, redeem, retire or acquire Capital Stock (A) of Equity Interests (Parent Guarantors or the Partnership held as of the Original Closing Date by Persons other than Disqualified Equity InterestsSubsidiaries of Parent or issued to any such Person after the Original Closing Date pursuant to Section 6.8(h) and (B) of Borrower Parent (x) as contemplated by the Plan upon Parent’s exercise of the New GGP Post-Emergence Public Offering Clawback Election (as defined in the Plan) or (y) held by any future, present (at the time of such transaction) or former employee, director, officer or consultant employee of Borrower Parent or any of its Subsidiaries or any direct Joint Ventures (or indirect parent companies pursuant to any management equity plan the heirs, estate, family members, spouse or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount former spouse of any Restricted Junior Payments previously made with of the cash proceeds described foregoing) in subclause (i) the case of this clause (y) in an amount not in excess of $25,000,000 per Fiscal Year; and
(d);) to the extent constituting a Restricted Junior Payment, the Partnership and Parent Guarantors may make Investments not otherwise prohibited under the Credit Documents; and
(e) cashless repurchases of Equity Interests the Partnership and Parent Guarantors may make Restricted Junior Payments deemed to occur upon the non-cash exercise of stock options or warrants if such Equity Interests represent a portion and warrants, and the payment of the exercise price taxes in respect of such options or warrants;
(f) cash payments in lieu of issuing fractional shares in connection with the exercise of warrantsoptions, options or other securities convertible into or exchangeable for Equity Interests of Borrower or any direct or indirect parent company of Borrower;
(g) so long as no Default or Event of Default has occurred warrants and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000similar items.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (General Growth Properties, Inc.)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, 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 for:
(a) the declaration and payment declaration, order, payment, making or setting apart (or any agreement to do any of dividends or the making foregoing) of other distributions any Restricted Junior Payment by any Subsidiary of Borrower ratably to its direct equity holders;
holders (provided that any Credit Party may receive a greater than ratable portion of such Restricted Junior Payment); (b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
; (c) refinancings of Indebtedness permitted by Section 6.1;
; (d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
: (i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
less (ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
; (e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
; (f) 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 Borrower or any direct or indirect parent company of Borrower;
; (g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre- 114 -Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Restricted Junior Payments. No Credit Note Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment except forexcept:
(a) Secondary share repurchases funded by proceeds of the declaration and payment sale by Issuer of dividends or the making of other distributions by any Subsidiary of Borrower ratably Notes, in an amount not to its direct equity holdersexceed $100,000,000;
(b) the redemption, Issuer may repurchase, retirementredeem, defeasance retire or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, otherwise acquire or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out retire for value Capital Stock of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower Issuer held by any future, present or former employee, director, officer or consultant of Borrower (or any immediate family member thereof) of its Subsidiaries the Issuer or any direct Subsidiary pursuant to any management equity plan or indirect parent companies stock option plan or any other management or employee benefit plan or agreement:
(1) with cash and Cash Equivalents (and including, to the extent constituting a Restricted Junior Payment, amounts paid in respect of Indebtedness issued to evidence an obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of the Issuer held by any future, present or former employee, director, officer or consultant (or any immediate family member thereof) of the Issuer or any Subsidiary of any of the foregoing) pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (includingin an amount not to exceed $10,000,000, for the avoidance of doubtwhich, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower if not used in connection with any such repurchaseFiscal Year, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactionsmay be carried forward to succeeding Fiscal Years; provided, provided that the aggregate amount of Restricted Junior Payments made under in any Fiscal Year pursuant to this clause (d1) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d)15,000,000;
(e2) cashless with the proceeds of any sale or issuance of the Capital Stock (other than Disqualified Capital Stock) of the Issuer; and/or
(3) with the net proceeds of any key person life insurance policy;
(c) any person may make non-cash repurchases of Equity Interests Capital Stock deemed to occur upon exercise or settlement of stock options or warrants if other Capital Stock to the extent such Equity Interests Capital Stock represent a portion of the exercise price of or withholding obligation with respect to such options or warrantsother Capital Stock;
(d) so long as no Event of Default is continuing or would result therefrom, Restricted Junior Payments may be made pursuant to this clause (d) from a substantially concurrent receipt of proceeds of any cash equity contribution (that is not in exchange for Disqualified Capital Stock) not otherwise applied hereunder and received by the Issuer after the Closing Date;
(e) any payments in connection with a Permitted Convertible Indebtedness Call Transaction;
(f) cash payments Restricted Junior Payments may be made to make payments, in cash, in lieu of issuing the issuance of fractional shares shares, upon the exercise of warrants or upon the conversion or exchange of Capital Stock of any such person;
(g) Restricted Junior Payments made to (i) redeem, repurchase, retire or otherwise acquire any Capital Stock (“Treasury Capital Stock”) of the Issuer and/or any Subsidiary in connection with exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Issuer and/or any Subsidiary) of, Qualified Capital Stock of the Issuer (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Issuer or a Subsidiary) of any Refunding Capital Stock;
(h) Restricted Junior Payments to repurchase Capital Stock upon the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests Capital Stock if such Capital Stock represents all or a portion of Borrower the exercise price of such warrants, options or any direct other securities convertible into or indirect parent company exchangeable for Capital Stock as part of Borrowera “cashless” exercise or required withholding Taxes;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such extent constituting a Restricted Junior Payment, payments of cash upon settlements of conversions or exchanges of convertible notes permitted under Section 6.1 (including the PubCo Notes); and
(ij) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000Tax Distributions.
Appears in 1 contract
Restricted Junior Payments. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, 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, in each case, except for:
(a) the declaration and payment of dividends or to Company’s equityholders in the making form of other distributions by any Subsidiary of Borrower ratably to its direct equity holdersCommon Stock;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds issuance of key man life insurance policies received by Borrower Capital Stock of Company upon the exercise of any warrants, options or its Subsidiaries after the Original Closing Date; less
rights to acquire such Capital Stock, including upon conversion of any Indebtedness that is convertible into or exchangeable for Capital Stock of Company, and (ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable into Capital Stock of Company;
(c) the payment of dividends or other Restricted Junior Payments by a Subsidiary of Borrower to any Loan Party or such Subsidiary’s direct parent company;
(d) the repurchase, retirement or other acquisition or retirement for Equity Interests value of Company’s Capital Stock held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of Company or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of Borrower or any direct Subsidiary; provided that the aggregate amounts of all such payments made pursuant to this clause (d) shall not, in the aggregate, exceed $[**];
(e) any payments pursuant to a Permitted Royalty Transaction;
(f) (i) the purchase by Borrower of Common Stock (including pursuant to Permitted Equity Derivatives) contemporaneously and otherwise in connection with the incurrence of Permitted Convertible Indebtedness; provided that the aggregate consideration for such Common Stock in connection with such purchases shall not exceed [**]% of the net proceeds received by Borrower from the incurrence of such Permitted Convertible Indebtedness, and (ii) any non-cash settlement or indirect parent company unwind of Borrowera Permitted Equity Derivative;
(g) Apellis Securities to Borrower to the extent in compliance with the terms of this Agreement and the Specified Massachusetts Regulations;
(h) any regularly scheduled payments of principal and interest or other amounts owing in respect of, or any reimbursement, indemnity or repurchase obligations under, any Permitted Priority Indebtedness and any Permitted Refinancing Indebtedness in respect thereof;
(i) regularly scheduled payments of interest as set forth in the documentation governing the Permitted Convertible Indebtedness and payments on maturity of such Permitted Convertible Indebtedness;
(j) the refinancing of any Indebtedness using the proceeds of any Permitted Refinancing Indebtedness;
(k) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before continuing or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6would result therefrom, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend payments in an aggregate amount not to exceed $10,000,000[**]; or
(l) any payment on subordinated Indebtedness in accordance with the subordination agreement governing such Indebtedness. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, Borrower shall not permit (i) Apellis Securities to make any Restricted Junior Payment in violation of the terms of this Agreement or in violation of the Specified Massachusetts Regulations nor (ii) Apellis International GmbH to make any Restricted Junior Payment to Apellis Europe B.V., unless the distributable reserves of Apellis International GmbH are not less than $[**] after giving pro forma effect to such Restricted Junior Payment.
Appears in 1 contract
Samples: Financing Agreement (Apellis Pharmaceuticals, Inc.)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, 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 for:
(a) the declaration and payment of dividends or the making of other distributions by any Subsidiary of Borrower ratably to its direct equity holders;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) 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 Borrower or any direct or indirect parent company of Borrower;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000. Notwithstanding the foregoing, until such time that (i) the Borrower delivers (x) the 2015 Year End Financial Information and (y) the 2016 First Quarter Financial Information and (ii) the Leverage Ratio of the Borrower and its Subsidiaries is less than 4.00 to 1.00 as of the last day of the most recently ended Fiscal Quarter for which financial statements were required to have been delivered pursuant to Sections 5.1(a) or (b), no Credit Party shall be permitted to declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart any sum for any Restricted Junior Payment pursuant to Section 6.4(h) in excess of $250,000,000 (the “Amendment No. 12 Restricted Junior Payment Basket”) (reduced on a dollar-for-dollar basis by (i) Permitted Acquisitions consummated utilizing the Amendment No. 12 Permitted Acquisition Basket and (ii) Investments made pursuant to the Amendment No. 12 Investment Basket).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, 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 for:
(a) the declaration and payment of dividends or the making of other distributions by any Subsidiary of Borrower ratably to its direct equity holders;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;; CG&R Draft Last Saved: 12/21/201201/23/2013 11:03 am 8950852v42:57 pm 8597568v15
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) 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 Borrower or any direct or indirect parent company of Borrower;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 200,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Datetime; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; andand CG&R Draft Last Saved: 12/21/201201/23/2013 11:03 am 8950852v42:57 pm 8597568v15
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Restricted Junior Payments. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, pay or make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment except forPayment, in each case, except:
(a) the declaration and payment of dividends or to Company’s equityholders in the making form of other distributions by any Subsidiary of Borrower ratably to its direct equity holdersCommon Stock;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds issuance of key man life insurance policies received by Borrower or its Subsidiaries after Capital Stock of Company upon the Original Closing Date; less
(ii) the amount exercise of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock warrants, options or warrants if rights to acquire such Equity Interests represent a portion Capital Stock, including upon conversion of the exercise price any Indebtedness that is convertible into or exchangeable for Capital Stock of such options or warrants;
Company, and (fy) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable into Capital Stock of Company;
(c) the payment of dividends or other Restricted Junior Payments by a Subsidiary of Borrower to Borrower or such Subsidiary’s direct parent company; [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would likely cause competitive harm to the company if publicly disclosed.
(d) the repurchase, retirement or other acquisition or retirement for Equity Interests value of Company’s Capital Stock held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of Company or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of Borrower or any direct or indirect parent company Subsidiary; provided that the aggregate amounts of Borrower;
all such payments made pursuant to this clause (g) d), shall not, [*], so long as (i) no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before continuing or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date would result therefrom and (ii) Borrower may repurchase shares and its Subsidiaries shall be in compliance with the covenant set forth in Section 6.8 on a pro forma basis after giving effect to such Restricted Junior Payment as of Borrower’s common stock within six months before the date of such payment;
(e) (i) any payments pursuant to the Astellas Royalty Monetization Transaction permitted by the Senior Lender Intercreditor Agreement and (ii) unless an Event of Default has occurred or after is continuing, any payments required to be made pursuant to Permitted Royalty Transactions (other than the settlement Astellas Royalty Monetiztion Transaction); provided that such payments shall be made not earlier than [*] prior to the date such payments are due or in the case of any written call option agreements entered into acceleration payment, true up payment or payment on account of a breach or default to the extent permitted not earlier than the date such payments are due; provided further that with respect to clause (ii) Borrower and its Subsidiaries shall be in compliance with the covenant set forth in Section 6.8 on a pro forma basis after giving effect to such Restricted Junior Payment as of the date of such payment;
(f) (i) the purchase by Borrower of Common Stock (including pursuant to Permitted Equity Derivatives) contemporaneously and otherwise in connection with the issuance incurrence of Permitted Convertible Indebtedness; provided that the aggregate consideration for such Common Stock shall not [*] received by Borrower from the incurrence of such Permitted Convertible Indebtedness, and (ii) any non-cash settlement or unwind of a Permitted Equity Derivative;
(g) other payments (other than in the form of dividends or distributions by the Borrower) [*], so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) Borrower and its Subsidiaries shall be in compliance with the covenant set forth in Section 6.8 on a pro forma basis after giving effect to such Restricted Junior Payment as of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement date of such written call optionspayment;
(h) other Restricted Junior Payments any payment on contractually subordinated Indebtedness in an aggregate amount taken together accordance with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under the subordination agreement governing such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; andIndebtedness;
(i) Restricted Junior Payments to the extent constituting a Permitted Prepayments of Certain Indebtedness by Section 6.17;
(j) the repurchase or other acquisition of Qualified Capital Stock of the Borrower deemed to occur in connection with any tax withholding required upon the Pre-Merger Special Dividend and/or grant of or any exercise or vesting of any Qualified Capital Stock of the Post-Merger Special Dividend Borrower (or options in an aggregate amount respect thereof); and
(k) any Tax Distributions, to the extent constituting a Restricted Junior Payment permitted by Section 6.17. [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would likely cause competitive harm to exceed $10,000,000the company if publicly disclosed.
Appears in 1 contract
Samples: Financing Agreement (Fibrogen Inc)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, 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 forthat:
(a) the declaration Holdings may declare and payment of dividends make dividend payments or the making of other distributions by payable solely in the common Capital Stock of Holdings (but not any Subsidiary of Borrower ratably to its direct equity holdersDisqualified Capital Stock);
(b) the redemption, repurchase, retirement, defeasance any Subsidiary of a Company may declare and pay dividends or make other acquisition of distributions to such Company or any Equity Interests, other Credit Party that is a Company or Wholly-Owned Guarantor (including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing IndebtednessPermitted Tax Distributions);
(c) refinancings Holdings may issue stock options, equity grants or similar instruments in the Capital Stock of Indebtedness permitted by Section 6.1;Holdings to the directors, officers and/or employees of Holdings or one of more of its Subsidiaries in anticipation of a spin-off of Lifecore so long as no such issuance thereof would result in an Event of Default; and
(d) Holdings may purchase, redeem or otherwise acquire shares of its common stock or other common Capital Stock to acquire any such Capital Stock in connection with customary employee or management agreements, plans or arrangements, (i) all in an aggregate amount for all such purchases or redemptions not to exceed $250,000 during the term of this Agreement; or (ii) in connection with (x) the forfeiture of such Capital Stock, or (y) the payment of exercise price and/or tax withholding obligations with respect to the vesting, settlement and/or exercise of such Capital Stock. Notwithstanding anything in this Section 6.5 to the contrary, in no event shall Holdings, Lifecore or any of their direct or indirect Subsidiaries (other than Curation or any of its direct or indirect Subsidiaries) make any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower Curation or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable Subsidiaries on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) 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 Borrower or any direct or indirect parent company of Borrower;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any Closing Date without the written call option agreements entered into in connection with the issuance consent of the VPI Convertible NotesAdministrative Agent and the Requisite Lenders, which repurchases may be in an aggregate amount not each case, to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other extent constituting Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000Payments.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Lifecore Biomedical, Inc. \De\)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, 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 for:
(a) the declaration and payment of dividends or the making of other distributions by any Subsidiary of Borrower ratably to its direct equity holders;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;; CG&R Draft Last Saved: 02/0620/2013 14:3244 pm 10174795v19
(f) 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 Borrower or any direct or indirect parent company of Borrower;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 200,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Datetime; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or indirectly, 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 forthat:
(a) the declaration and payment of dividends or the making of other distributions Restricted Junior Payments by any Subsidiary of the Borrower ratably to its direct equity holdersany Borrower, any Guarantor or wholly owned subsidiary of the Borrower;
(b) dividends and distributions declared and paid on the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out common Capital Stock of the proceeds of, Borrower and payable only in common Capital Stock of the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing IndebtednessBorrower;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) 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 Borrower or any direct or indirect parent company of Borrower;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) the Borrower may repurchase shares of purchase the Borrower’s common stock within six months before Capital Stock from present or after former employees, directors, officers or members of management (or the estate, family members, spouse or former spouse of any conversion date for Borrower Convertible Notesof the foregoing) upon the death, which repurchases may be in an disability or termination of employment of such Person; provided, that the aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made permitted pursuant to this clause (hd) shall not to exceed $350,000,000 5,000,000 in any Fiscal Year; and
(reduced on a dollar for dollar basis by outstanding Investments d) Restricted Junior Payments constituting (x) any payments made pursuant to clause the exercise of the Xxxxxxxxxx.xxx Put/Call Option or the closing of the share purchase pursuant thereto or (y) the purchase of minority interests in non-wholly owned Subsidiaries pursuant to customary put arrangements, drag-along provisions or rights of first refusal contained in shareholder agreements; provided that either (i) immediately following such purchase, such Subsidiary becomes a Guarantor and the Borrower and such Subsidiary complies with the requirements of Section 6.6, other than Investments under such clause made using 5.11 or (ii) the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
Payment under this clause (id) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in is permitted to be made as an aggregate amount not Investment pursuant to exceed $10,000,000Section 6.6(f)(iv).
Appears in 1 contract
Samples: Senior Subordinated Bridge Loan Agreement (Source Interlink Companies Inc)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, 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 for:
(a) the declaration and payment declaration, order, payment, making or setting apart (or any agreement to do any of dividends or the making foregoing) of other distributions any Restricted Junior Payment by any Subsidiary of Borrower ratably to its direct equity holdersholders (provided that any Credit Party may receive a greater than ratable portion of such Restricted Junior Payment);
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) 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 Borrower or any direct or indirect parent company of Borrower;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000. Notwithstanding the foregoing, until such time that the Leverage Ratio of the Borrower and its Subsidiaries is less than 4.00 to 1.00 as of the last day of the most recently ended Fiscal Quarter for which financial statements were required to have been delivered pursuant to Sections 5.1(a) or (b), no Credit Party shall be permitted to declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart any sum for any Restricted Junior Payment pursuant to Section 6.4(h); provided that the Credit Parties may make such Restricted Junior Payments in an amount up to $200,000,000 (the “Amendment No. 12 Restricted Junior Payment Basket”) (reduced on a dollar-for-dollar basis by Investments made pursuant to the Amendment No. 12 Investment Basket).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, 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 for:
(a) the declaration and payment of dividends or the making of other distributions distributions, order, payment, making or setting apart (or any agreement to do any of the foregoing) of any Restricted Junior Payment by any Subsidiary of Borrower ratably to its direct equity holdersholders (provided that any Credit Party may receive a greater than ratable portion of such Restricted Junior Payment);
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) 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 Borrower or any direct or indirect parent company of Borrower;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000. Notwithstanding the foregoing, until such time that (i) the Borrower delivers (x) the 2015 Year End Financial Information and (y) the 2016 First Quarter Financial Information and (ii) the Leverage Ratio of the Borrower and its Subsidiaries is less than 4.00 to 1.00 as of the last day of the most recently ended Fiscal Quarter for which financial statements were required to have been delivered pursuant to Sections 5.1(a) or (b), no Credit Party shall be permitted to declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart any sum for any Restricted Junior Payment pursuant to Section 6.4(h) in excess of $250,000,000; provided that the Credit Parties may make such Restricted Junior Payments in an amount up to $200,000,000 (the “Amendment No. 12 Restricted Junior Payment Basket”) (reduced on a dollar-for-dollar basis by (i) Permitted Acquisitions consummated utilizing the Amendment No. 12 Permitted Acquisition Basket and (ii) Investments made pursuant to the Amendment No. 12 Investment Basket).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, 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 for:
(a) the declaration and payment of dividends or the making of other distributions by any Subsidiary of Borrower Parent ratably to its direct equity holders;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower Parent or any Equity Interests of any direct or indirect parent company of BorrowerParent, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower Parent or any direct or indirect parent company of Borrower Parent to the extent contributed to Borrower Parent (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower Parent held by any future, present or former employee, director, officer or consultant of Borrower Parent or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower Parent or any direct or indirect parent company of Borrower Parent in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower Parent or any direct or indirect parent company of Borrower Parent in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower Parent or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) 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 Borrower Parent or any direct or indirect parent company of BorrowerParent;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower Parent may repurchase shares of BorrowerParent’s common stock within six months before or after any conversion date for Borrower the Parent Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of BorrowerParent’s common stock delivered upon conversion of Borrower the Parent Convertible Notes on such conversion date and (ii) Borrower Parent may repurchase shares of BorrowerParent’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of BorrowerParent’s common stock delivered upon settlement of such written call options;; and
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (hi) not to exceed $350,000,000 400,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Datetime; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, 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 for:
(a) the declaration and payment declaration, order, payment, making or setting apart (or any agreement to do any of dividends or the making foregoing) of other distributions any Restricted Junior Payment by any Subsidiary of Borrower ratably to its direct equity holdersholders (provided that any Credit Party may receive a greater than ratable portion of such Restricted Junior Payment);
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) 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 Borrower or any direct or indirect parent company of Borrower;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000.; and
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, 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 for:
(a) the declaration and payment of dividends or the making of other distributions by any Subsidiary of Borrower Parent ratably to its direct equity holders;
(b) [Reserved];
(c) the redemption, repurchase, retirement, defeasance retirement or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower Parent or any Equity Interests of any direct or indirect parent company of BorrowerParent, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower Parent or any direct or indirect parent company of Borrower Parent to the extent contributed to Borrower Parent (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness);
(cd) refinancings of Indebtedness permitted by Section 6.1;
(de) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower Parent held by any future, present or former employee, director, officer or consultant of Borrower Parent or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower Parent or any direct or indirect parent company of Borrower Parent in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower Parent or any direct or indirect parent company of Borrower Parent in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (de) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower Parent or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (de);
(ef) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(fg) 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 Borrower Parent or any direct or indirect parent company of Borrower;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call optionsParent;
(h) any Restricted Junior Payment used to fund (or otherwise made in connection with) the Transactions (including the Dividend and the Refinancing);
(i) the Post-Merger Special Dividend;
(j) [Reserved];
(k) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (hk) not to exceed $350,000,000 400,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Datetime; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(il) Restricted Junior Payments so long as no Default or Event of Default has occurred and is continuing, cash settlement of the aggregate principal amount (plus accrued interest and premium, if any) of the Valeant Convertible Notes on or after the first optional redemption date thereof upon conversion by the holders thereof; provided, however, that, in lieu of cash settling all or a portion of the Valeant Convertible Notes, Parent may repurchase shares of Parent’s common stock within six months of the first optional redemption date for the Valeant Convertible Notes, for aggregate consideration not to exceed the aggregate principal amount (plus accrued interest and premium, if any) of the Valeant Convertible Notes, in connection with the Pre-Merger Special Dividend and/or settlement of all or a portion of the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000Valeant Convertible Notes with Parent common stock.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, 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 for:
(a) the declaration and payment of dividends or the making of other distributions by any Subsidiary of Borrower Parent ratably to its direct equity holders;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower Parent or any Equity Interests of any direct or indirect parent company of BorrowerParent, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower Parent or any direct or indirect parent company of Borrower Parent to the extent contributed to Borrower Parent (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower Parent held by any future, present or former employee, director, officer or consultant of Borrower Parent or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower Parent or any direct or indirect parent company of Borrower Parent in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower Parent or any direct or indirect parent company of Borrower Parent in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower Parent or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) 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 Borrower Parent or any direct or indirect parent company of BorrowerParent;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower Parent may repurchase shares of BorrowerParent’s common stock within six months before or after any conversion date for Borrower the Parent Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of BorrowerParent’s common stock delivered upon conversion of Borrower the Parent Convertible Notes on such conversion date and (ii) Borrower Parent may repurchase shares of BorrowerParent’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of BorrowerParent’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (hi) not to exceed $350,000,000 400,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Datetime; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
. Notwithstanding anything else in this Agreement to the contrary, Parent and Borrower shall not be permitted to make any Restricted Junior Payment pursuant to Section 6.5(g) or (ih) at any time Term Loan Commitments or Term Loans are outstanding under this Agreement, other than Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed exceeding $10,000,000150,000,000.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum for Make any Restricted Junior Payment except for:Payment; provided, however, that, so long as it is permitted by applicable law,
(a) the declaration and payment of dividends or the making of other distributions by any Restricted Subsidiary of Borrower ratably that is a Guarantor may make Restricted Junior Payments to its direct equity holdersBorrower or another Restricted Subsidiary of Borrower that is a Guarantor;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness Restricted Subsidiary of Borrower that is not a Guarantor may make Restricted Junior Payments to Borrower or any Equity Interests of any direct or indirect parent company another Restricted Subsidiary of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;[intentionally omitted]; and
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) 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 Borrower or any direct or indirect parent company of Borrower;
(g) so long as no Default or Event of Default has occurred and is continuingcontinuing or would be caused thereby, the preceding provisions will not prohibit:
(i) Borrower the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may repurchase shares be, if at the date of Borrower’s common stock within six months before declaration or after any conversion date for Borrower Convertible Notesnotice, which repurchases may be in an aggregate amount not to exceed the number dividend or redemption payment would have complied with the provisions of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and this Agreement;
(ii) Borrower may repurchase shares the making of any Restricted Junior Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of Borrower’s ) of, Equity Interests of Borrower (other than Prohibited Preferred Stock) or from the substantially concurrent contribution of common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not equity capital to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(hiii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of Borrower or any Restricted Subsidiary of Borrower that is a Guarantor that is contractually subordinated in right of payment to the Obligations with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(iv) a Restricted Junior Payment made in cash for the purpose of repurchasing, redeeming or otherwise acquiring or retiring any Equity Interests of Borrower, any Restricted Subsidiary of Borrower or any direct or indirect parent of Borrower held by any current or former officer, director or employee of Borrower or any of its Restricted Subsidiaries or its direct or indirect parent, as the case may be, pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided that the aggregate amount of Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made permitted pursuant to this clause (hiv) may not to exceed $350,000,000 (reduced on 750,000 during any 12-month period; provided, however, that any amount not paid in a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount 12 month period shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Paymentadded to, and available in, subsequent 12 month periods; and
(iv) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or repurchase of Equity Interests deemed to occur upon the Post-Merger Special Dividend in an aggregate amount not exercise of stock options to exceed $10,000,000the extent such Equity Interests represent a portion of the exercise price of those stock options.
Appears in 1 contract
Restricted Junior Payments. No Credit Party shall, nor Each of Borrower and the Guarantors shall it permit any of its Subsidiaries through any manner or means or through any other Person tonot, 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 forexcept:
(a) the declaration and payment of dividends or the making of other distributions by any Subsidiary of Borrower ratably to its direct equity holders[Intentionally Reserved];
(b) the redemption[Intentionally Reserved];
(c) so long as no Event of Default exists or would result therefrom, repurchase, retirement, defeasance (A) repurchases or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereonredemptions by a Loan Party of, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than B) payments to a Subsidiary) of, Equity Interests of Borrower Parent to permit Parent (or any direct or indirect parent company of Borrower thereof) to the extent contributed to Borrower (repurchase or redeem, in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
case Capital Stock of a Loan Party (c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant thereof) held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of a Loan Party or any of its respective Subsidiaries, upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions and payments shall not exceed $5,000,000 in any Fiscal Year;
(d) Borrower and the Guarantors may make Restricted Junior Payments consisting of the repurchase of Capital Stock deemed to occur upon (i) any management equity plan “cashless” exercise of stock options, warrants or other convertible securities or (ii) the election of an employee to have the Parent or Borrower withhold shares of Capital Stock in respect of any U.S. federal, state and local withholding taxes due upon the vesting of restricted stock awards with any stock option plan or any other management management, director and/or employee stock ownership or employee benefit incentive plan or agreement (including, for to the avoidance extent of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d)withholding taxes;
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrantsPermitted Tax Distributions;
(f) cash payments other Restricted Junior Payments in lieu of issuing fractional shares an amount not to exceed $10,000,000 in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Borrower or any direct or indirect parent company of Borroweraggregate after the Closing Date;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares ordinary course dividends on the Capital Stock of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be Parent in an aggregate amount not up to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of $7,500,000 in any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call optionsFiscal Year;
(h) other so long as no Event of Default has occurred and is continuing, Restricted Junior Payments in an aggregate amount taken together (when combined with all other Restricted Junior Payments made pursuant to this clause (hInvestments under Section 6.7(n) and prepayments of Indebtedness under Section 6.18(ii)) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause exceeding the sum of (i) 10.0% of Section 6.6, other than Investments under such clause made using Adjusted Cash EBITDA for each Fiscal Quarter commencing on the CNI Growth Amount) at any time outstanding from and first day of the first full Fiscal Quarter after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately Closing Date and ended on or prior to the date of determination and (ii) the cumulative amount of cash proceeds (or, if the proceeds thereof are other than cash, the fair market value (as determined in good faith by the Borrower) of marketable securities or other property) received from any Permitted Equity Issuance and 100% of the aggregate amount of cash contributions to the common capital of Parent (and 100% of the aggregate fair market value (as determined in good faith by the Borrower) of property other than cash contributed to the common capital of Parent), in each case after the Closing Date at such time of making of such Restricted Junior PaymentNot Otherwise Applied; and
(i) to the extent constituting Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000Payments, transactions permitted under Section 6.9.
Appears in 1 contract
Samples: Credit Agreement (Tiptree Inc.)
Restricted Junior Payments. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, pay or make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment Payment, in each case, except for:
(a) the declaration and payment of dividends or to Company’s equityholders in the making form of other distributions by any Subsidiary of Borrower ratably to its direct equity holdersCommon Stock;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds issuance of key man life insurance policies received by Borrower or its Subsidiaries after Capital Stock of Company upon the Original Closing Date; less
(ii) the amount exercise of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock warrants, options or warrants if rights to acquire such Equity Interests represent a portion Capital Stock, including upon conversion of the exercise price any Indebtedness that is convertible into or exchangeable for Capital Stock of such options or warrants;
Company, and (fy) 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 into Capital Stock of Borrower or any direct or indirect parent company of BorrowerCompany;
(gc) the payment of dividends or other Restricted Junior Payments by a Subsidiary of the Company to the Company or such Subsidiary’s direct parent company;
(d) the repurchase, retirement or other acquisition or retirement for value of Company’s Capital Stock held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of Company or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of the Company or any Subsidiary; provided that the aggregate amounts of all such payments made pursuant to this clause (d), shall not, in the aggregate, exceed [***];
(e) any payments with resepct to Royalty Monetization Transactions so long as no Default or Event of Default has occurred and such Royalty Monetization Transaction is continuing, expressly permitted by Section 6.9(b);
(i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notespayment with respect to the Series A Preferred Shares issued to RPI Finance Trust in April 2019, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date [***] and (ii) Borrower may repurchase shares any payment made pursuant to the formula specified for mandatory redemptions under Company’s Amended and Restated Memorandum and Articles of Borrower’s common stock within six months before or after Association as in effect on Closing Date, as adjusted for the settlement amount actually funded under that certain Series B Preferred Share Purchase Agreement dated as of any written call option agreements entered into the Closing Date, by and between Company and RPI 2019 Intermediate Finance Trust, as in effect on the Closing Date;
(g) the purchase by the Company of Capital Stock (other than Disqualified Capital Stock, but including pursuant to Permitted Equity Derivatives) of the Company contemporaneously and otherwise in connection with Permitted Convertible Indebtedness; provided that the issuance aggregate consideration for such Capital Stock shall not exceed 15% of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed Net Proceeds received by the number of shares of Borrower’s common stock delivered upon settlement Company from the incurrence of such written call options;Permitted Convertible Indebtedness; and
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause the Loan Parties may purchase, redeem, retire or otherwise acquire for value Capital Stock (h) not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (iand any related stock appreciation rights, plans, equity incentive or achievement plans or any similar plans) of a Person being acquired in any Permitted Acquisition or other Investment permitted by Section 6.6, 6.7 in connection with such Permitted Acquisition or other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective DateInvestment; provided that such amount CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION purchase, redemption, retirement or acquisition shall be increased a part of the consideration or purchase price paid for such Permitted Acquisition (but not decreased) by the CNI Growth Amount as in effect immediately prior i.e. subject to any applicable caps with respect to the time of making purchase price of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000Permitted Acquisition).
Appears in 1 contract
Samples: Financing Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, 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 for:
(a) the declaration and payment of dividends or the making of other distributions by any Subsidiary of Borrower ratably to its direct equity holders;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds of key man life insurance policies received by Borrower or its Subsidiaries after the Original Closing Date; less
(ii) the amount of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) 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 Borrower or any direct or indirect parent company of Borrower;
(g) so long as no Default or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an aggregate amount taken together with all other Restricted Junior Payments made pursuant to this clause (h) not to exceed $350,000,000 200,000,000350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Payment; and
(i) Restricted Junior Payments in connection with the Pre-Merger Special Dividend and/or the Post-Merger Special Dividend in an aggregate amount not to exceed $10,000,000.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Restricted Junior Payments. No Credit Loan Party shall, nor shall it permit any of its Subsidiaries through any manner or means or through any other Person to, directly or indirectly, declare, order, pay, pay or make or set apart, or agree to declare, order, pay, make or set apart, any sum for any Restricted Junior Payment Payment, in each case, except for:
(a) the declaration and payment of dividends or to Borrower’s equityholders in the making form of other distributions by any Subsidiary of Borrower ratably to its direct equity holdersCommon Stock;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests, including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of Borrower or any Equity Interests of any direct or indirect parent company of Borrower, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary) of, Equity Interests of Borrower or any direct or indirect parent company of Borrower to the extent contributed to Borrower (in each case, other than any Disqualified Equity Interests) or Subordinated Indebtedness incurred under Section 6.1; provided that any such Subordinated Indebtedness shall be Refinancing Indebtedness;
(c) refinancings of Indebtedness permitted by Section 6.1;
(d) any Restricted Junior Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) of Borrower held by any future, present or former employee, director, officer or consultant of Borrower or any of its Subsidiaries or any direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by Borrower or any direct or indirect parent company of Borrower in connection with any such repurchase, retirement or other acquisition), or any stock subscription or shareholder agreement, including any Equity Interest rolled over by management of Borrower or any direct or indirect parent company of Borrower in connection with the 2010 Transactions; provided, that the aggregate amount of Restricted Junior Payments made under this clause (d) shall not exceed in any calendar year $25,000,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year, and the permitted amount for each year shall be used prior to any amount carried over from the previous year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds issuance of key man life insurance policies received by Capital Stock of Borrower or its Subsidiaries after upon the Original Closing Date; less
(ii) the amount exercise of any Restricted Junior Payments previously made with the cash proceeds described in subclause (i) of this clause (d);
(e) cashless repurchases of Equity Interests deemed to occur upon exercise of stock warrants, options or warrants if rights to acquire such Equity Interests represent a portion Capital Stock, including upon conversion of the exercise price any Indebtedness that is convertible into or exchangeable for Capital Stock of such options or warrants;
Borrower, and (fy) 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 Borrower or any direct or indirect parent company into Capital Stock of Borrower;
(gc) so long as no Default the payment of dividends or Event of Default has occurred and is continuing, (i) Borrower may repurchase shares of Borrower’s common stock within six months before or after any conversion date for Borrower Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon conversion of Borrower Convertible Notes on such conversion date and (ii) Borrower may repurchase shares of Borrower’s common stock within six months before or after the settlement of any written call option agreements entered into in connection with the issuance of the VPI Convertible Notes, which repurchases may be in an aggregate amount not to exceed the number of shares of Borrower’s common stock delivered upon settlement of such written call options;
(h) other Restricted Junior Payments in an by a Subsidiary of Borrower to Borrower or such Subsidiary’s direct parent company;
(d) the repurchase, retirement or other acquisition or retirement for value of Borrower’s Capital Stock held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of Borrower or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of Borrower or any Subsidiary; provided that the aggregate amount taken together with amounts of all other Restricted Junior Payments such payments made pursuant to this clause (hd) shall not to exceed $350,000,000 (reduced on a dollar for dollar basis by outstanding Investments pursuant to clause (i) of Section 6.6, other than Investments under such clause made using the CNI Growth Amount) at [***] in any time outstanding from and after the Amendment No. 6 Effective Date; provided that such amount shall be increased (but not decreased) by the CNI Growth Amount as in effect immediately prior to the time of making of such Restricted Junior Paymentfiscal year; and
(ie) Restricted Junior Payments [***];
(f) any payment on subordinated Indebtedness in accordance with the subordination agreement governing such Indebtedness;
(g) [reserved]; and
(h) the Loan Parties may purchase, redeem, retire or otherwise acquire for value Capital Stock (and any related stock appreciation rights, plans, equity incentive or achievement plans or any similar plans) of a Person being acquired in any Permitted Acquisition or other Investment permitted by Section 6.7 in connection with such Permitted Acquisition or other Investment; provided that such purchase, redemption, retirement or acquisition shall be a part of the Pre-Merger Special Dividend and/or consideration or purchase price paid for such Permitted Acquisition (i.e. subject to any applicable caps with respect to the Post-Merger Special Dividend in an aggregate amount not purchase price of such Permitted Acquisition). Notwithstanding anything to exceed $10,000,000the contrary contained herein, at no time during a Restricted Period shall any Restricted Junior Payment otherwise permitted under the foregoing clauses (d), (e), (f) or (h) be made.
Appears in 1 contract
