Restricted Payments and Restricted Junior Debt Payments. (a) Each of the Company and any Restricted Subsidiary shall not: (i) declare or pay any dividend or make any payment or distribution on account of the Company’s or any of the Restricted Subsidiaries’ Equity Interests, including any dividend or distribution payable in connection with any merger, amalgamation or consolidation, other than: (A) dividends or distributions by the Company or any Restricted Subsidiary payable solely in Equity Interests (other than Disqualified Stock) of the Company or any Restricted Subsidiary; (B) dividends, payments or distributions by a Restricted Subsidiary so long as, in the case of any dividend, payment or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities; (ii) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Company, including in connection with any merger, amalgamation or consolidation; (as such payments and other actions set forth in clauses (i) through (ii) above (other than any exceptions thereto) being collectively referred to as “Restricted Payments”); (iii) make any Restricted Junior Debt Prepayment; or (iv) make any Restricted Investment, with the only exception under this covenant being clause (xi) of Section 9.03(b).
Appears in 2 contracts
Samples: Credit Agreement (SunOpta Inc.), Credit Agreement (SunOpta Inc.)
Restricted Payments and Restricted Junior Debt Payments. (a) Each of the Company and any Restricted Subsidiary shall not:
(i) declare or pay any dividend or make any payment or distribution on account of the Company’s or any of the Restricted Subsidiaries’ Equity Interests, including any dividend or distribution payable in connection with any merger, amalgamation or consolidation, other than:
(A) dividends or distributions by the Company or any Restricted Subsidiary payable solely in Equity Interests (other than Disqualified Stock) of the Company or any Restricted Subsidiary;
(B) dividends, payments or distributions by a Restricted Subsidiary so long as, in the case of any dividend, payment or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities;
(ii) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Company, including in connection with any merger, amalgamation or consolidation; (as such payments and other actions set forth in clauses (i) through (ii) above (other than any exceptions thereto) being collectively referred to as “Restricted Payments”);
(iii) make any Restricted Junior Debt Prepayment; or
(iv) make any Restricted Investment, with the only exception under this covenant being clause (xi) of Section 9.03(b).
(b) Section 9.03(a) shall not prohibit:
(i) (a) the redemption, repurchase, defeasance, retirement or other acquisition of any Equity Interests (“Treasury Capital Stock”) or Junior Debt of the Company or any Restricted Subsidiary, in exchange for, or out of the proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary) of, Equity Interests of the Company or any Restricted Subsidiary to the extent contributed to the Company or such Restricted Subsidiary(in each case, other than any Disqualified Stock) (“Refunding Capital Stock”) and (b) the declaration and payment of dividends on Treasury Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than to a Subsidiary of the Company or to an employee stock ownership plan or any trust established by the Company or any of its Subsidiaries) of Refunding Capital Stock;
(ii) the prepayment, redemption, defeasance, repurchase, exchange or other acquisition or retirement of (1) Junior Debt of the Company, any Borrower or any Subsidiary Guarantor made by exchange for, or out of the proceeds of a substantially concurrent sale of, new Indebtedness of the Company, any Borrower or any Subsidiary Guarantor or (2) Disqualified Stock of the Company, any Borrower or any Subsidiary Guarantor made by exchange for, or out of the proceeds of a substantially concurrent sale of, new Indebtedness of the Company, any Borrower or any Subsidiary Guarantor that, in each case, is Incurred in compliance with Section 9.04, so long as:
(A) the principal amount (or accreted value, if applicable) of such new Indebtedness or the liquidation preference of such new Disqualified Stock does not exceed the principal amount of (or accreted value, if applicable), plus any accrued and unpaid interest on, the Junior Debt or the liquidation preference of, plus any accrued and unpaid dividends on, the Disqualified Stock being so prepaid, defeased, redeemed, repurchased, exchanged, acquired or retired for value, plus the amount of any reasonable premium to be paid (including reasonable tender premiums), defeasance costs and any fees and expenses incurred in connection with the issuance of such new Indebtedness or Disqualified Stock;
(B) (x) if the Junior Debt was subordinated to the Obligations, then such new Indebtedness shall be subordinated to the Obligations at least to the same extent as such Junior Debt so purchased, exchanged, redeemed, defeased, repurchased, exchanged, acquired or retired, (y) if the Junior Debt was secured by a Lien, then such new Indebtedness shall not be secured by a Lien on assets senior in priority to the Liens securing such Junior Debt so purchased, exchanged, redeemed, defeased, repurchased, exchanged, acquired or retired and (z) if the Junior Debt was unsecured, then such new Indebtedness shall be unsecured;
(C) such new Indebtedness or Disqualified Stock has a final scheduled maturity date or final mandatory redemption date equal to or later than the final scheduled maturity date of the Junior Debt or Disqualified Stock being so redeemed, defeased, repurchased, exchanged, acquired or retired (or, if earlier, the date that is 91 days after the maturity date of the Obligations); and
(D) such new Indebtedness or Disqualified Stock has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Junior Debt or Disqualified Stock being so redeemed, defeased, repurchased, exchanged, acquired or retired (or requires no or nominal payments in cash prior to the date that is 91 days after the maturity date of the Obligations).
(iii) any Restricted Payment to pay for the repurchase, redemption, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the Company held by any future, present or former employee, director, officer, manager or consultant (including trustees, administrators, executors, powers of attorney, heirs, assignees, estates and beneficiaries of any of the foregoing) of the Company or any of its Restricted Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or arrangement, or any stock subscription or shareholder agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Company in connection with such repurchase, retirement or other acquisition) including any Equity Interest rolled over or purchased by management, directors or employees of the Company in connection with the Transactions; provided that the aggregate amount of Restricted Payments made under this clause does not exceed $5,000,000 in any fiscal year following the Closing Date (with unused amounts in any fiscal year being carried over to the next succeeding fiscal year); provided further that such amount in any fiscal year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Company to any future, present or former employee, director, officer, manager or consultant (including trustees, administrators, executors, powers of attorney, heirs, assignees, estates and beneficiaries of any of the foregoing) of the Company or any of its Subsidiaries that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of this Section 9.03; plus (B) the cash proceeds of key man life insurance policies received by the Company or the Restricted Subsidiaries after the Closing Date; less (C) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (A) and (B) of this clause (iii); and provided further that (x) cancellation of Indebtedness owing to the Company or any of the Restricted Subsidiaries from any future, present or former employee, director, officer, manager or consultant (including trustees, administrators, executors, powers of attorney, heirs, assignees, estates and beneficiaries of any of the foregoing) of the Company or any of its Subsidiaries in connection with a repurchase of Equity Interests of the Company and (y) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or similar instruments if such Equity Interests represents all or a portion of the exercise price thereof or payments, in lieu of the issuance of fractional Equity Interests or withholding to pay other taxes payable in connection therewith, in the case of each of clauses (x) and (y), shall not be deemed to constitute a Restricted Payment for purposes of this Section 9.03 or any other provision of this Agreement;
(iv) payments of cash, dividends, distributions, advances or other Restricted Payments by the Company or any Restricted Subsidiary to allow the payment of cash in lieu of the issuance of fractional shares;
(v) reasonable and customary indemnities to directors, officers and employees in the ordinary course of business;
(vi) payments made or expected to be made by the Company or any Restricted Subsidiary in respect of withholding or similar taxes payable upon the exercise of Equity Interests by any future, present or former employee, director, officer, manager or consultant and any repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or other convertible, exchangeable or exercisable instruments if such Equity Interests represent a portion of the exercise price of such instruments or required withholding or similar taxes;
(vii) the Company or any Subsidiary may make payments of dividends on Disqualified Stock or Preferred Stock issued in accordance with Section 9.04;
(viii) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or other distribution or giving of the redemption or prepayment notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment or prepayment would have complied with the provisions of Section 9.03; provided that it is understood that the Administrative Agent, in its Permitted Discretion, may establish a Reserve during such 60-day period in an amount not to exceed the amount of such declared but unpaid dividend or distribution;
(ix) any Restricted Payment (including dividends and other payments in respect of Capital Stock) or Restricted Junior Debt Prepayment; provided that the Distribution Conditions are satisfied both before and after giving effect to such Restricted Payment or Restricted Junior Debt Prepayment;
(x) any Restricted Payment or Restricted Junior Debt Prepayments with the Available Equity Amount Basket; and
(xi) other Restricted Payments, Restricted Junior Debt Prepayments and Restricted Investments in an aggregate amount, as of the date made, taken together with any other Restricted Payments made pursuant to this clause (xi) (in the case of Restricted Investments incurred under this clause (xi) and outstanding on such date (without giving effect to the sale of an Investment to the extent the proceeds of such sale do not consist of, or have not been subsequently sold or transferred for, cash or Investment Cash Equivalents)) and Restricted Junior Debt Prepayments made pursuant to under this clause (xi), following the Closing Date, not to exceed $20,000,000.
Appears in 1 contract
Samples: Credit Agreement (SunOpta Inc.)
Restricted Payments and Restricted Junior Debt Payments. (a) Each of the Company and any Restricted Subsidiary shall not:
(i) declare or pay any dividend or make any payment or distribution on account of the Company’s or any of the Restricted Subsidiaries’ Equity Interests, including any dividend or distribution payable in connection with any merger, amalgamation or consolidation, other than:
(A) dividends or distributions by the Company or any Restricted Subsidiary payable solely in Equity Interests (other than Disqualified Stock) of the Company or any Restricted SubsidiaryCompany;
(B) dividends, payments or distributions by a Restricted Subsidiary so long as, in the case of any dividend, payment or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities;
(ii) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Company, including in connection with any merger, amalgamation or consolidation; (as such payments and other actions set forth in clauses (i) through (ii) above (other than any exceptions thereto) being collectively referred to as “Restricted Payments”);
(iii) make any Restricted Junior Debt Prepayment; or
(iv) make any Restricted Investment, with the only exception under this covenant being clause (xi) of Section 9.03(b).
Appears in 1 contract
Samples: Credit Agreement (SunOpta Inc.)
