Restricted Payments; Certain Payments of Debt. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except: (i) the Borrower may declare and pay the Special Dividend; (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock; (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests; (iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of: (A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus (B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”; (v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds; (vi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement; (vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof; (viii) so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000; (ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date; (x) the payment of the Special Stub Dividend; (xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds; (xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that (A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent; (B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof; (C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and (D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing; (xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and (xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declaration. (b) The Borrower will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoing, except: (i) the payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness; (ii) payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds; (iii) refinancings of Restricted Indebtedness to the extent not prohibited by Section 6.01; and (iv) the payment of regularly scheduled payments of principal on the 2013 Notes and the Valor Bonds, in each case pursuant to the terms thereof as in effect on the Second ARCA Effective Date.
Appears in 2 contracts
Samples: Credit Agreement (Windstream Corp), Credit Agreement (Windstream Corp)
Restricted Payments; Certain Payments of Debt. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:except that, so long as it is permitted by law,
(i) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Parent may make (and Subsidiaries of Parent may make distributions to Parent so that Parent may make) cash distributions to current and former employees, officers, or directors of Parent or its Subsidiaries (or any spouses, ex-spouses, or estates of any of the Borrower may declare foregoing) on account of redemptions of Equity Interests of Parent held by such Persons; provided, that (A) the aggregate amount of such redemptions made by Parent during the term of this Agreement does not exceed $250,000 in the aggregate; and pay (B) the Special Dividend;aggregate amount of such Restricted Payments made by Parent during the term of this Agreement for independent directors does not exceed $250,000 in the aggregate,
(ii) the Borrower payments of dividends or other distributions by Subsidiaries of a Loan Party may declare and pay dividends with respect be made to its Equity Interests payable solely in additional shares of its common stocksuch Loan Party (other than Parent);
(iii) Subsidiaries Parent may declare and pay dividends ratably purchase, redeem or otherwise acquire shares of its Equity Interests that are not Disqualified Equity Interests or warrants or options to acquire any such equity interests that are not Disqualified Equity Interests with respect to their the proceeds received from the substantially concurrent issue of new shares of its equity interests that are not Disqualified Equity Interests;
(iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”[Reserved];
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of extent constituting Restricted Payments, the Borrower or a substantially concurrent sale (other than to a Subsidiary of Loan Parties and their Subsidiaries may take the Borroweractions permitted by Section 7.02, Section 7.04(b), Section 7.06(b) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceedsand Section 7.08;
(vi) Parent may declare and make dividend payments or other distributions, in each case, which are payable solely by the issuance of Equity Interests of Parent that are not Disqualified Equity Interests of such Person;
(vii) Parent may declare and make (and Subsidiaries of Parent may make distributions to Parent so that Parent may make) dividend payments or other distributions to the holders of its Equity Interests, other than those in clause (vi), in each case, so long as (A) at the time of making such payment or distribution, no Dividend Suspension Period Default or Event of Default has occurred and is continuing or would result therefromafter giving effect thereto, (B) the declaration Consolidated Fixed Charge Coverage Ratio of Parent and its Subsidiaries, on a consolidated basis, is equal to or greater than 1.35:1.00 for (x) the Test Period most recently ended, prior to making such payment or distribution, for which financial statements are required to have been delivered to Administrative Agent pursuant to Section 6.01(c) of dividends this Agreement (calculated on a pro forma basis as if such proposed payment or distributions to holders distribution were included in the numerator of such ratio on the last day of such Test Period (it being understood that such proposed payment or distribution shall also be included on the last day of such Test Period for purposes of calculating the Consolidated Fixed Charge Coverage Ratio under this clause (B) for any class subsequent proposed payment or series of Disqualified Stock distribution under this Section 7.06(a)(vii))) and (y) the upcoming six Test Periods immediately succeeding the date of the Borrower issued proposed payment or incurred distribution, as projected by Parent on a month-end basis for each such month, based on projections reasonably acceptable to Administrative Agent, (C) Excess Revolver Availability, (x) at all times during the 60 consecutive days immediately preceding the date of such proposed payment or distribution, calculated on a pro forma basis as if such proposed payment or distribution was made on the first day of such 60 day period and after giving effect to such proposed payment or distribution, and (y) as projected by Parent on a month end basis for each of the 6 consecutive Fiscal Months immediately succeeding the date of the proposed payment or distribution, based on projections reasonably acceptable to Administrative Agent, in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which each case, is not prohibited by this Agreement to less than $10,000,000 and (D) at the extent that time of making such Equity Interests represent all payment or distribution and on a portion of pro forma basis after giving effect thereto, Parent and its Subsidiaries shall be in compliance with the exercise price thereof;financial covenants set forth in Section 6.13; and
(viii) the Loan Parties and their Subsidiaries may make (and Subsidiaries of Parent may make distributions to Parent so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower that Parent may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiiimake) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiv) so long as the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declarationPayment Conditions are satisfied.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any such Indebtedness, or Make any payment (includingwhether constituting principal, without limitationinterest or otherwise) on account of, or redemption or acquisition for value of any portion of, any payment under a Swap Agreement) earn-out or any other Debt that has a substantially similar effect been contractually subordinated to any of the foregoingObligations, except:
(i) the payment Xxxxxxx Subordinated Debt (including, for the avoidance of regularly scheduled doubt, any principal and interest payments of interest and fees and under the payment of expenses andXxxxxxx Subordinated Note), in the case of the Alltel Xxxxxxx Xxxxx onlyprovided, mandatory payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
(ii) payments in respect of Restricted Indebtedness, provided that (Av) no Dividend Suspension Period Default or Event of Default has occurred and is continuing at the time of such payment or would result therefrom after giving effect thereto, (w) Parent and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 6.13 at the time of making such payment and on a pro forma basis after giving effect thereto, (Bx) Excess Revolver Availability, (I) at all times during the aggregate amount of such payments does not exceed the sum (calculated as of 60 consecutive days immediately preceding the date of such proposed payment, calculated on a pro forma basis as if such proposed payment was made on the first day of such 60 day period and after giving effect to all other applications such proposed payment (provided, that the 60 day look-back period described in this clause (I) shall not apply in respect of Available Distributable Cash payments of interest under the Xxxxxxx Subordinated Note for the period commencing on the Closing Date through the date that is sixty (60) days following the Closing Date), and (II) as projected by Parent on a month end basis for each of the 6 consecutive Fiscal Months immediately succeeding the date of the proposed payment, based on projections reasonably acceptable to Administrative Agent, in each case, is not less than $5,000,000, (y) the Consolidated Fixed Charge Coverage Ratio of Parent and its Subsidiaries, on a consolidated basis, is equal to or Available Equity Proceeds on greater than 1.10:1.00 for (I) the Test Period most recently ended, prior to making such datepayment, for which financial statements are required to have been delivered to Administrative Agent pursuant to Section 6.01(c) of this Agreement (Acalculated on a pro forma basis as if such proposed payment were included in the numerator of such ratio on the last day of such Test Period (it being understood that such proposed payment shall also be included on the last day of such Test Period for purposes of calculating the Consolidated Fixed Charge Coverage Ratio under this clause (y) Available Distributable Cash plus for any subsequent proposed payment under this Section 7.06(b)(i))) and (BII) Available Equity Proceedsthe upcoming six Test Periods immediately succeeding the date of the proposed payment, as projected by Parent on a month-end basis for each such month, based on projections reasonably acceptable to Administrative Agent, and (z) such payments do not contravene any subordination provisions applicable thereto;
(ii) to the extent such payment is permitted at such time under the applicable subordination terms; and
(iii) any refinancing of such Debt with the proceeds of other Debt permitted under Section 7.03.
(c) Make any optional or voluntary prepayment, redemption, defeasance, purchase or other acquisition of any Debt of any Loan Party or its Subsidiaries, except:
(i) the Xxxxxxx Subordinated Debt, provided, that (v) no Default or Event of Default has occurred and is continuing at the time of such prepayment or would result after giving effect thereto, (w) Parent and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 6.13 at the time of making such prepayment and on a pro forma basis after giving effect thereto, (x) Excess Revolver Availability, (I) at all times during the 60 consecutive days immediately preceding the date of such proposed prepayment, calculated on a pro forma basis as if such proposed prepayment was made on the first day of such 60 day period and after giving effect to such proposed prepayment, and (II) as projected by Parent on a month end basis for each of the 6 consecutive Fiscal Months immediately succeeding the date of the proposed prepayment, based on projections reasonably acceptable to Administrative Agent, in each case, is not less than $5,000,000, (y) the Consolidated Fixed Charge Coverage Ratio of Parent and its Subsidiaries, on a consolidated basis, is equal to or greater than 1.10:1.00 for (I) the Test Period most recently ended, prior to making such prepayment, for which financial statements are required to have been delivered to Administrative Agent pursuant to Section 6.01(c) of this Agreement (calculated on a pro forma basis as if such proposed prepayment were included in the numerator of such ratio on the last day of such Test Period (it being understood that such proposed prepayment shall also be included on the last day of such Test Period for purposes of calculating the Consolidated Fixed Charge Coverage Ratio under this clause (y) for any subsequent proposed prepayment under this Section 7.06(c)(i))) and (II) the upcoming six Test Periods immediately succeeding the date of the proposed prepayment, as projected by Parent on a month-end basis for each such month, based on projections reasonably acceptable to Administrative Agent, and (z) such prepayments do not contravene any subordination provisions applicable thereto;
(ii) any refinancing of such Debt with the proceeds of other Debt permitted under Section 7.03;
(iii) refinancings any payment of Restricted Indebtedness to the extent not prohibited by Section 6.01; Revolver Loans in accordance with this Agreement, and
(iv) the payment of regularly scheduled payments of principal on the 2013 Notes and the Valor Bonds, other Debt in each case pursuant to accordance with the terms thereof of this Agreement or such Debt, as in effect on applicable, so long as the Second ARCA Effective DatePayment Conditions are satisfied.
Appears in 1 contract
Samples: Loan and Security Agreement (Alliance Entertainment Holding Corp)
Restricted Payments; Certain Payments of Debt. (a) The Borrower No DealerTrack Company will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except that (i) the Borrower may declare and pay the Special Dividend;
(ii) the Borrower Holdings may declare and pay dividends with respect to its Equity Interests capital stock payable solely in additional shares of its common stock;
, (iiiii) Subsidiaries (A) any Subsidiary (other than the Company) may declare and pay dividends ratably with respect to their Equity Interests;
(iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, its capital stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
and (B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and Company may declare and pay dividends onwith respect to its capital stock so long as any cash or other property so distributed is applied, its common substantially simultaneously therewith, to make an Investment permitted by Section 6.04, (iii) Holdings may make Restricted Payments (A) pursuant to and in accordance with stock option plans or other benefit plans of the DealerTrack Companies, (B) in connection with an IPO to the extent required to pay accrued dividends on preferred Equity Interests in Holdings which become due as a result thereof and (C) after the Term Loan Maturity Date (or, if the Term Loans have, at the time, been repaid in full, the date of such repayment in full), in an aggregate amount which does in any Fiscal Year not exceed exceeding 50% of Consolidated Net Income for the sum preceding Fiscal Year, and (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xiiiv) the redemption of the Borrower’s common stock Company may declare and pay dividends to Holdings at such times and in such amounts as shall be necessary to permit Holdings to conduct activities and discharge liabilities permitted by Section 6.03(c) (including to pay taxes attributable to its ownership in its Subsidiaries as permitted thereby) (it being understood that Holdings may not use any such amount to make any Restricted Payment (whether in connection with the Directories Equity Exchange; provided that
(Aactivities or liabilities permitted by Section 6.03(c) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1or otherwise) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received unless such Restricted Payment is expressly permitted by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (Bi) or (iii) above)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declaration.
(b) The Borrower No DealerTrack Company will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted IndebtednessDebt, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoingDebt, except:
(i) the payment payments in respect of Debt permitted by clauses (i) and (iii) of Section 6.01(a);
(ii) payments of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory principal payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
Debt permitted by clauses (ii) payments and (iv) through (xvi) of Section 6.01(a); provided that no such payment may be made in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (x) Permitted Seller Notes or (y) Debt existing pursuant to clause (ii) of Section 6.01(a) owed to any seller of property, in each case unless, immediately before and after giving pro forma effect to such payment, no Default under clause (a), (b), (h) or (i) of Section 7.01 shall have occurred and be continuing or would result therefrom, or (B) Available Equity ProceedsPermitted Subordinated Debt if such payment would be inconsistent with any of the criteria set forth in clauses (A) and/or (B) of the definition thereof;
(iii) refinancings of Restricted Indebtedness Debt to the extent not prohibited permitted by Section 6.016.01(a); and
(iv) the payment of regularly scheduled payments secured Debt that becomes due as a result of principal on the 2013 Notes and voluntary sale or transfer of the Valor Bonds, in each case pursuant to the terms thereof as in effect on the Second ARCA Effective Dateproperty securing such Debt.
Appears in 1 contract
Restricted Payments; Certain Payments of Debt. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) the Borrower may declare and pay the Special Dividend;
(ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock;
(iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declaration.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) the payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
(ii) payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;; and
(iii) refinancings of Restricted Indebtedness to the extent not prohibited permitted by Section 6.01; and
(iv) the payment of regularly scheduled payments of principal on the 2013 Notes and the Valor Bonds, in each case pursuant to the terms thereof as in effect on the Second ARCA Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Windstream Corp)
Restricted Payments; Certain Payments of Debt. (a) The Borrower None of the Obligors will, nor will not, and will not they permit any of its Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) the Borrower may declare and pay the Special Dividend;
(ii) the Parent Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stockEquity Interests in Parent Borrower;
(iiiii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iii) the Parent Borrower may (A) use the proceeds of the Term Loan Debt to pay the Original Closing Date Dividend and (B) make other Restricted Payments not exceeding $5,000,000 from and after the Original Closing Date, in each case pursuant to and in accordance with stock option plans, equity purchase programs or agreements or other benefit plans, in each case for management or employees or former employees of the Parent Borrower and the Subsidiaries; and
(iv) the repurchase, redemption or Parent Borrower may make other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreementRestricted Payments; provided that at the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale time of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment immediately after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of Restricted Payments (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock and any Debt incurred in connection with therewith), the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declarationRequired Conditions are met.
(b) The Borrower None of the Obligors will, nor will not, and will not they permit any of its Subsidiaries Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted IndebtednessDebt, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance retirement, acquisition, cancellation or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoingDebt, except:
(i) payment of Debt created under the Loan Documents;
(ii) payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory principal payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
(ii) Debt, other than payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at subordinated Debt prohibited by the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceedssubordination provisions thereof;
(iii) refinancings of Restricted Indebtedness Debt to the extent not prohibited permitted by Section 6.0110.2.1;
(iv) payment of secured Debt out of the proceeds of any sale or transfer of the property or assets securing such Debt;
(v) [reserved];
(vi) payments of Debt with the Net Proceeds of an issuance of Equity Interests in Parent Borrower; and
(ivvii) the payment of regularly scheduled payments of principal on Debt; provided that at the 2013 Notes time of and immediately after giving effect to such payment, the Required Conditions are met.
(c) None of the Obligors will, nor will they permit any Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic Purchase Agreement related to any Restricted Debt, the payments required to be made by the Parent Borrower or the Subsidiaries thereunder are limited to the amount permitted under Section 10.2.8(b) and (iii) in the case of any Synthetic Purchase Agreement, the obligations of the Parent Borrower and the Valor Bonds, in each case pursuant Subsidiaries thereunder are subordinated to the Obligations on terms thereof as in effect on satisfactory to the Second ARCA Effective DateRequired Lenders.
Appears in 1 contract
Samples: Loan Agreement (Horizon Global Corp)
Restricted Payments; Certain Payments of Debt. (a) The Neither Holdings nor the Borrower will, nor will not, and will not they permit any of its Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except that (i) the Borrower Holdings may declare and pay the Special Dividend;
dividends with respect to its capital stock payable solely in additional shares of its common stock, (ii) any wholly owned Subsidiary of the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common capital stock;
, (iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iv) at any time after the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by Contribution Date the Borrower since the Effective Date as a contribution and Holdings may make Restricted Payments to its common equity capital Holdings or from the issue or sale of Equity Interests LLC (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(virespectively) so long as (x) Holdings and LLC (as applicable) applies the proceeds thereof to repurchase its Equity Interests from employees, (y) immediately before and after giving effect to any such Restricted Payment, no Dividend Suspension Period or Event of Default has occurred and is continuing and (z) the aggregate amount of such Restricted Payments made on or would result therefrom, after the declaration Effective Date does not exceed $1,000,000 and payment of dividends or distributions to holders of any class or series of Disqualified Stock of (iv) the Borrower issued and Holdings may make Restricted Payments to Holdings or incurred in accordance with this Agreement;
LLC (vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viiirespectively) so long as no Dividend Suspension PeriodHoldings and LLC (as applicable) applies the proceeds thereof to pay (x) fees and expenses directly associated with the Equity Financing or the Additional Equity Financing, and (y) other fees and expenses of Holdings or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares LLC in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declaration500,000.
(b) The Neither Holdings nor the Borrower will, nor will not, and will not they permit any of its Subsidiaries Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect 72 78 of principal of or interest on any Restricted IndebtednessDebt, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance retirement, acquisition, cancellation or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoingDebt, except:
(i) payment of Debt created under the Loan Documents;
(ii) payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory principal payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
Debt permitted by Section 6.01 (ii) other than any principal payments in respect of Restricted Indebtedness, provided that (ADebt permitted by Section 6.01(a)(vi) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity ProceedsSection 6.01(b)(ii));
(iii) refinancings of Restricted Indebtedness Debt to the extent not prohibited permitted by Section 6.01; and
(iv) the payment of regularly scheduled payments secured Debt that becomes due as a result of principal on the 2013 Notes and voluntary sale or transfer of the Valor Bondsproperty securing such Debt to the extent such sale or transfer is permitted by Section 6.05.
(c) The Borrower will not enter into or be party to, or make any payment under, any Synthetic Purchase Agreement except, in each the case pursuant of any Synthetic Purchase Agreement related to any Equity Interests, if (A) the payments required to be made thereunder are limited to the amount permitted under Section 6.08(a) and (B) the obligations of the Borrower thereunder are subordinated to the Secured Obligations on terms thereof as in effect on satisfactory to the Second ARCA Effective DateRequired Lenders. The Borrower shall promptly deliver to the Administrative Agent a copy of any Synthetic Purchase Agreement to which it becomes party. The Borrower will not permit any Subsidiary to enter into or be party to, or make any payment under any Synthetic Purchase Agreement.
Appears in 1 contract
Restricted Payments; Certain Payments of Debt. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) the Borrower may declare and pay the Special Dividend[reserved];
(ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock;
(iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Sixth ARCA Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends to Holdco to allow Holdco to repurchase of its Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Sixth ARCA Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date[reserved];
(x) the payment of the Special Stub Dividend[reserved];
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing[reserved];
(xiii) other Restricted Payments following the Sixth ARCA Effective Date in an aggregate amount not exceeding $50,000,000; and75,000,000;
(xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declaration; and
(xv) Permitted Holdco Payments; provided, however, that no Permitted Holdco Payments of the type described in clause (c) of the definition thereof shall be permitted to be made at any time under this clause (xv) unless such Restricted Payment is permitted to be made under each indenture, credit agreement or other agreement or instrument governing Material Indebtedness in effect at such time.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) the payment of regularly scheduled payments of principal (including payments at maturity and any mandatory sinking fund or similar deposit), interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory payments of principal in an aggregate amount not to exceed $10,000,000 annuallyexpenses, in each case as and when due in respect of any Restricted Indebtedness;
(ii) payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Indebtedness with Available Equity Proceeds on such date) or in the form of Equity Interests of the Borrower (A) Available Distributable Cash plus (B) Available Equity Proceedsother than Disqualified Stock), Holdco or Propco;
(iii) refinancings of Restricted Indebtedness (including by way of an exchange therefor of Permitted Refinancing Indebtedness or Permitted Additional Debt) to the extent not prohibited by Section 6.01;
(iv) [reserved];
(v) payments or distributions in respect of Restricted Indebtedness; provided that (A) no Event of Default has occurred and is continuing or shall result therefrom, (B) the Borrower shall be in compliance with Sections 6.13 and 6.14, determined on a Pro Forma Basis and (C) the Secured Leverage Ratio on a Pro Forma Basis computed as of the last day of the most recently-ended Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b) shall not exceed 2.0 to 1.0; and
(ivvi) the payment prepayment or redemption of regularly scheduled payments of principal on Permitted Escrow Notes with the 2013 related Notes and the Valor Bonds, in each case Escrowed Proceeds pursuant to the terms thereof as in effect on the Second ARCA Effective Datea Permitted Mandatory Redemption Provision.
Appears in 1 contract
Restricted Payments; Certain Payments of Debt. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) the Borrower may declare and pay the Special Dividend;
(ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock;
(iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declaration.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) the payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
(ii) payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(iii) refinancings of Restricted Indebtedness to the extent not prohibited by Section 6.01; and;
(iv) the payment of regularly scheduled payments of principal on (x) the 2013 Notes and the Valor Bonds, in each case pursuant to the terms thereof as in effect on the Second ARCA Effective Date and (y) the Peach 2015 Notes pursuant to the terms thereof as in effect on the Second ARCA Third Amendment Effective Date;
(v) payments or distributions in respect of Restricted Indebtedness on and after January 1, 2011 in an aggregate amount not to exceed $750,000,000; and
(vi) the prepayment or redemption of Permitted Escrow Notes with the related Notes Escrowed Proceeds pursuant to a Permitted Mandatory Redemption Provision.
Appears in 1 contract
Samples: Credit Agreement (Windstream Corp)
Restricted Payments; Certain Payments of Debt. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) the Borrower may declare and pay the Special Dividend;
(ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock;
(iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are Table of Contents used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay regular quarterly dividends on, its common stock in accordance with its dividend policy in effect from time to time (which may be changed at any time by the Borrower’s Board of Directors) in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;; Table of Contents
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xivxiii) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declaration.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) the payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
(ii) payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(iii) refinancings of Restricted Indebtedness to the extent not prohibited by Section 6.01; and
(iv) the payment of regularly scheduled payments of principal on the 2013 Notes and the Valor Bonds, in each case pursuant to the terms thereof as in effect on the Second ARCA Effective Date.
Appears in 1 contract
Samples: Credit Agreement (Windstream Corp)
Restricted Payments; Certain Payments of Debt. (a) The No Borrower Group Company will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except that (i) the Borrower may declare and pay the Special Dividend;
(ii) the Borrower may declare and pay dividends with respect to its Equity Interests capital stock payable solely in additional shares of its common stock;
; (iiiii) Subsidiaries any Subsidiary may declare and pay dividends ratably with respect to its capital stock; (iii) the Borrower may repurchase shares of its Equity Interests from employees of the Borrower or any of its Subsidiaries upon their Equity Interests;
death, termination or retirement, so long as, before and after giving effect to such repurchase, (x) no Default shall have occurred and be continuing and (y) the aggregate consideration for all such repurchases made in reliance on this clause (iii) after the Existing Agreement Closing Date does not exceed $3,000,000 plus proceeds of equity issuances to employees; (iv) the Borrower may repurchase shares of the Preferred Stock at any time so long as, before and after giving effect to any such repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid consideration for all such repurchased, redeemed, acquired or retired Equity Interests repurchases of Preferred Stock made in any fiscal year will reliance on this clause does not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
and (v) the making Borrower may repurchase shares of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, its Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of at any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) time so long as no Dividend Suspension Period or Event of Default has occurred as, before and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on any such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchangerepurchase, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (Bx) no Default or Event of Default shall have occurred and be continuing;
, (xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xivy) the Borrower may pay any dividend within 90 days aggregate unused amount of the Revolving Commitments shall be equal to or greater than $15,000,000 and (z) the aggregate consideration for all of such repurchases made in reliance on this clause (v) after the date Existing Agreement Closing Date does not exceed the sum of declaration thereof, if the Borrower would have been permitted (A) $5,000,000 plus (B) 50% of Consolidated Net Income for each Fiscal Year ended prior to make such payment under this Section 6.08(a) on the date of such declarationrepurchases (commencing with the Fiscal Year ended September 30, 2003). Solely for purposes of calculating the amount in Section 6.08(a)(v) (z)(B) above, if Consolidated Net Income (as adjusted to exclude one time restructuring and plant closing charges that are non-cash charges, and to the extent applicable, in accordance with clause (2) below) for any Fiscal Year is less than zero (such negative number for any Fiscal Year, the “Negative Carry-Forward Amount”), (1) Consolidated Net Income for such Fiscal Year shall be deemed to be zero and (2) the Negative Carry-Forward Amount in respect of such Fiscal Year shall be applied to reduce Consolidated Net Income for the succeeding Fiscal Year.
(b) The No Borrower Group Company will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted IndebtednessDebt, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any such Indebtedness, or any payment Debt (including, without limitation, any payment in respect of Restricted Debt under a Swap Synthetic Purchase Agreement) that has a substantially similar effect to any of the foregoing), except:
(i) payment of Debt created under the Loan Documents;
(ii) payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory principal payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
(ii) Debt, except payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) Subordinated Debt prohibited by the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceedssubordination provisions thereof;
(iii) refinancings of Restricted Indebtedness Debt to the extent not prohibited permitted by Section 6.01;
(iv) payment of secured Debt that becomes due as a result of the voluntary sale or transfer of the property securing such Debt;
(v) payment of intercompany debt owing;
(vi) payment of Debt that is permitted under Section 6.01(vi);
(vii) payment of Debt that is permitted under Section 6.01(vii); and
(ivviii) repurchases of Subordinated Debt, so long as before and after giving effect to any such repurchase, (A) no Default shall have occurred and be continuing, (B) the aggregate unused amount of the Revolving Commitments shall be equal to or greater than $25,000,000, (C) the Senior Secured Leverage Ratio shall not exceed 2.00:1, (D) the aggregate consideration for all such repurchases of Subordinated Debt made in reliance on this clause (viii) does not exceed $25,000,000 and (E) the call premium (if any) applicable to such repurchased Subordinated Debt does not exceed 115%.
(c) The Borrower will not enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of regularly scheduled any Synthetic Purchase Agreement related to any Equity Interests, (A) the payments of principal on the 2013 Notes and the Valor Bonds, in each case pursuant required to be made thereunder are limited to the amount permitted under subsection (a) of this Section and (B) the obligations of the Borrower thereunder are subordinated to the Secured Obligations on terms thereof satisfactory to the Required Lenders; and (ii) in the case of any Synthetic Purchase Agreement related to any Subordinated Debt, (A) the payments required to be made thereunder are limited to the amount permitted under subsection (b) of this Section and (B) the obligations of the Borrower thereunder are subordinated to the Secured Obligations to at least the same extent as in effect on the Second ARCA Effective DateSubordinated Debt to which such Synthetic Purchase Agreement relates. The Borrower shall promptly deliver to the Administrative Agent a copy of any Synthetic Purchase Agreement to which it becomes party. The Borrower will not permit any Subsidiary to enter into, be party to, or make any payment under any Synthetic Purchase Agreement.
Appears in 1 contract
Samples: Credit Agreement (Fastentech Inc)
Restricted Payments; Certain Payments of Debt. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) the Borrower may declare and pay the Special Dividend[reserved];
(ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock;
(iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Sixth ARCA Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends to Holdco to allow Holdco to repurchase of its Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Sixth ARCA Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date[reserved];
(x) the payment of the Special Stub Dividend[reserved];
(xi) so long as no Dividend Suspension Period or a Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent[reserved];
(Bxiii) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by so long as no Dividend Suspension Period or a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have has occurred and be continuing;
(xiii) is continuing or would result therefrom, other Restricted Payments following the Sixth ARCA Effective Date in an aggregate amount not exceeding $50,000,000; and75,000,000;
(xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declaration; and
(xv) Permitted Holdco Payments; provided, however, that no Permitted Holdco Payments of the type described in clause (c) of the definition thereof shall be permitted to be made at any time under this clause (xv) unless such Restricted Payment is permitted to be made under each indenture, credit agreement or other agreement or instrument governing Material Indebtedness in effect at such time.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) the payment of regularly scheduled payments of principal (including payments at maturity and any mandatory sinking fund or similar deposit), interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory payments of principal in an aggregate amount not to exceed $10,000,000 annuallyexpenses, in each case as and when due in respect of any Restricted Indebtedness;
(ii) payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Indebtedness with Available Equity Proceeds on such date) or in the form of Equity Interests of the Borrower (A) Available Distributable Cash plus (B) Available Equity Proceedsother than Disqualified Stock), Holdco or Propco;
(iii) refinancings of Restricted Indebtedness with (including by way of an exchange therefor ofthereof for) Permitted Refinancing Indebtedness, Permitted Pari Passu Indebtedness, Permitted Junior Lien Indebtedness, Incremental Term Loans or Permitted Additional Debt) to the extent not prohibited by Section 6.01; and(so long as such Permitted Additional Debt does not require any scheduled payment of principal (including pursuant to a sinking fund obligation) or mandatory redemption or redemption at the option of the holders thereof (except for redemptions in respect of asset sales and changes in control on terms that are market terms on the date of issuance) prior to the date that is 123 days after the Latest Maturity Date applicable to any then-outstanding Revolving Loans or Revolving Commitments); provided that in the case of Permitted Additional Debt, such Indebtedness satisfies the requirements set forth in clause (b) of the definition of Permitted Refinancing Indebtedness;
(iv) [reserved];
(v) payments or distributions in respect of Restricted Indebtedness; provided that (A) no Event of Default has occurred and is continuing or shall result therefrom, (B) the payment Borrower shall be in compliance with Sections 6.13 and 6.14, determined on a Pro Forma Basis and (C) the SecuredFirst Lien Leverage Ratio on a Pro Forma Basis computed as of regularly scheduled payments the last day of principal on the 2013 Notes and the Valor Bonds, in each case most recently-ended Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b) shall not exceed 2.0 to 1.0; and
(vi) the terms thereof as in effect on prepayment or redemption of Permitted Escrow Notes with the Second ARCA Effective Daterelated Notes Escrowed Proceeds pursuant to a Permitted Mandatory Redemption Provision.
Appears in 1 contract
Restricted Payments; Certain Payments of Debt. (a) The No Borrower Group Company will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except that (i) the Borrower may declare and pay the Special Dividend;
(ii) the Borrower may declare and pay dividends with respect to its Equity Interests capital stock payable solely in additional shares of its common stock;
, (iiiii) Subsidiaries any Subsidiary may declare and pay dividends ratably with respect to its capital stock, (iii) the Borrower may repurchase shares of its Equity Interests from employees of the Borrower or any of its Subsidiaries upon their Equity Interests;
death, termination or retirement, so long as, before and after giving effect to such repurchase, (x) no Default shall have occurred and be continuing and (y) the aggregate consideration for all such repurchases made after the date hereof does not exceed $3,000,000 plus proceeds of equity issuances to employees, (iv) the repurchase, redemption or other acquisition or retirement for value Borrower may repurchase shares of any its Equity Interests of at any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) time so long as no Dividend Suspension Period or Event of Default has occurred as, before and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on any such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchangerepurchase, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (Bx) no Default or Event of Default shall have occurred and be continuing;
, (xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xivy) the Borrower may pay any dividend within 90 days aggregate unused amount of the Revolving Commitments shall be equal to or greater than $15,000,000 and (z) the aggregate consideration for all of such repurchases made after the date hereof does not exceed the sum of declaration thereof, if (A) $5,000,000 plus (B) in the case of any such repurchases made on or after the date on which the Borrower would have been permitted has delivered the Required 2003 Financials, 50% of Consolidated Net Income for each Fiscal Year ended prior to make such payment under this Section 6.08(a) on the date of such declarationrepurchases (commencing with the Fiscal Year ended September 30, 2003). Solely for purposes of calculating the amount in Subsection 6.08(a)(iv)(z)(B) above, if Consolidated Net Income (as adjusted to exclude one time restructuring and plant closing charges that are non-cash charges, and to the extent applicable, in accordance with clause (2) below) for any Fiscal Year is less than zero (such negative number for any Fiscal Year, the “Negative Carry-Forward Amount”), (1) Consolidated Net Income for such Fiscal Year shall be deemed to be zero and (2) the Negative Carry-Forward Amount in respect of such Fiscal Year shall be applied to reduce Consolidated Net Income for the succeeding Fiscal Year.
(b) The No Borrower Group Company will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted IndebtednessDebt, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any such Indebtedness, or any payment Debt (including, without limitation, any payment in respect of Restricted Debt under a Swap Synthetic Purchase Agreement) that has a substantially similar effect to any of the foregoing), except:
(i) payment of Debt created under the Loan Documents;
(ii) payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory principal payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
(ii) Debt, except payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) Subordinated Debt prohibited by the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceedssubordination provisions thereof;
(iii) refinancings of Restricted Indebtedness Debt to the extent not prohibited permitted by Section 6.01;
(iv) payment of secured Debt that becomes due as a result of the voluntary sale or transfer of the property securing such Debt;
(v) payment of intercompany debt owing;
(vi) payment of Debt that is permitted under Section 6.01(vi); and
(ivvii) payment of Debt that is permitted under Section 6.01(vii).
(c) The Borrower will not enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic Purchase Agreement related to any Equity Interests, (A) the payment of regularly scheduled payments of principal on the 2013 Notes and the Valor Bonds, in each case pursuant required to be made thereunder are limited to the amount permitted under subsection (a) of this Section and (B) the obligations of the Borrower thereunder are subordinated to the Secured Obligations on terms thereof satisfactory to the Required Lenders; and (ii) in the case of any Synthetic Purchase Agreement related to any Subordinated Debt, (A) the payments required to be made thereunder are limited to the amount permitted under subsection (b) of this Section and (B) the obligations of the Borrower thereunder are subordinated to the Secured Obligations to at least the same extent as in effect on the Second ARCA Effective DateSubordinated Debt to which such Synthetic Purchase Agreement relates. The Borrower shall promptly deliver to the Administrative Agent a copy of any Synthetic Purchase Agreement to which it becomes party. The Borrower will not permit any Subsidiary to enter into, be party to, or make any payment under any Synthetic Purchase Agreement.
Appears in 1 contract
Samples: Credit Agreement (Gear & Broach, Inc. C/O FastenTech, Inc.)
Restricted Payments; Certain Payments of Debt. (a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, exceptunless, at the time of and after giving effect to such Restricted Payment:
(i) the Borrower may declare no Default or Event of Default shall have occurred and pay the Special Dividendbe continuing or would occur as a consequence thereof;
(ii) the Borrower may declare would, after giving pro forma effect to such Restricted Payment as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been in compliance with Sections 6.12 and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock;6.13; and
(iii) Subsidiaries may declare and pay dividends ratably such Restricted Payment, together with respect to their Equity Interests;
(iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for amount of all such repurchasedother Restricted Payments and Restricted Investments made by the Borrower and its Restricted Subsidiaries on or after the Effective Date (excluding Restricted Payments permitted by clauses (ii) through (xi) of Section 6.08(b)), redeemedis less than the sum, acquired or retired Equity Interests in any fiscal year will not exceed the sum without duplication, of:
(A) $20,000,000an amount equal to the Borrower’s Consolidated Adjusted EBITDA for the period (taken as one accounting period) from April 1, 2017 to the end of the Borrower’s most recently ended fiscal quarter for which financial statements prepared on a consolidated basis in accordance with unused amounts pursuant GAAP have been filed with the Commission (or, in the event that the Borrower shall no longer be subject to this subclause the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, are available) (A) being carried over to succeeding fiscal years; the “Basket Period”), less 1.4 times the Borrower’s Fixed Charges for the Basket Period, plus
(B) 100% of the aggregate net cash proceeds received by the Borrower since after the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower or from the incurrence of Indebtedness (including the issuance of Disqualified Stock) of the Borrower or any of its Restricted Subsidiaries that has been converted into or exchanged for such Equity Interests (other than Equity Interests sold to, or Indebtedness held by, a Subsidiary of the Borrower and except to the extent converted into or exchanged for Disqualified Stock), plus
(C) with respect to Restricted Investments made by the Borrower and its Restricted Subsidiaries after the Effective Date, (1) the aggregate amount of cash equal to the return from such Restricted Investments in any current Person resulting from repayments of loans or former employeeadvances, consultant or director other transfers of assets, in each case to the Borrower or any Wireline Company; provided that Restricted Subsidiary or from the amount net proceeds received in cash from the sale of any such net cash Restricted Investment (except, in each case, to the extent any such payment or proceeds that are used to permit a repurchaseincluded in the calculation of Consolidated Net Income) or (2) in the case of redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries, redemption or other acquisition under this subclause (B) will be excluded from clause (a) the Fair Market Value of the definition Investments therein at the time of “Available Equity Proceeds”such redesignation, plus
(D) 100% of any cash dividends and other distributions received by the Borrower and its wholly-owned Restricted Subsidiaries from an Unrestricted Subsidiary after the Effective Date to the extent not included in the cumulative Consolidated Adjusted EBITDA of the Borrower.
(b) Section 6.08(a) shall not prohibit, so long as, in the case of Section 6.08(b)(v), (vii), (x) and (xi), no Default has occurred and is continuing or would be caused thereby:
(i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Agreement;
(vii) the payment of any dividend or other distribution by a Restricted Subsidiary of the Borrower to the holders of its Equity Interests on a pro rata basis;
(iii) the making of any payment Restricted Payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will Restricted Payment shall be excluded for the purposes of calculating Available Equity Proceedsfrom Section 6.08(a)(iii)(B);
(viiv) so long as no Dividend Suspension Period the defeasance, redemption, repurchase or Event other acquisition of Default has occurred and is continuing or would result therefrom, Subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(v) the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower or any Preferred Stock of its Restricted Subsidiaries issued or incurred in accordance with this AgreementSection 6.01;
(viivi) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viiivii) so long as no Dividend Suspension Period(A) the repurchase, redemption or Event other acquisition or retirement for value of Default has occurred and is continuing or would result therefrom, the repurchase of any Equity Interests of the Borrower constituting fractional shares or any of its Restricted Subsidiaries held by any current or former employee, consultant or director of the Borrower or any of its Restricted Subsidiaries pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement or (B) the purchase, in an the open
(1) $2.5 million, with unused amounts pursuant to this subclause (1) being carried over to succeeding fiscal years; plus
(2) the aggregate amount net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of the Borrower or any of its Restricted Subsidiaries; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (2) shall be excluded from clause (2)(b) of the definition of Restricted Payment;
(viii) the repurchase of any Subordinated Indebtedness at a purchase price not greater than 101% of the principal amount thereof in the event of an Asset Disposition pursuant to exceed $100,000a provision no more favorable to the holders thereof than Section 6.05 hereof;
(ix) the payment of dividends by cash in lieu of fractional Equity Interests of the Borrower on in connection with a share dividend, distribution, share split, reverse share split, merger, consolidation, amalgamation or other business combination of the Borrower or any of its common stock Restricted Subsidiaries, in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Dateeach case, permitted under this Agreement;
(x) other Restricted Payments solely to the payment extent that the Borrower’s Consolidated Leverage Ratio on a pro forma basis for the most recently ended four fiscal quarters for which financial statements prepared on a consolidated basis in accordance with GAAP have been filed with the Commission (or, in the event that the Borrower shall no longer be subject to the reporting requirements of Section 13 or Section 15(d) of the Special Stub Dividend;
(xiExchange Act, are available) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of immediately preceding the date of on which such dividend payment Restricted Payment is made and after giving effect thereto is less than 2.00 to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents1.00; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiiixi) other Restricted Payments in an aggregate amount not exceeding to exceed $50,000,000; and10.0 million.
(xivc) Notwithstanding the foregoing, the Borrower may pay shall not, and shall not permit any dividend within 90 days after of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payments of the type specified in clause (i), (ii) or (iii) of the definition thereof by means of utilization of Section 6.08(a)(iii) or Section 6.08(b)(i), in each case unless the Borrower’s Consolidated Leverage Ratio on a pro forma basis for the most recently ended four fiscal quarters for which financial statements prepared on a consolidated basis in accordance with GAAP have been filed with the Commission (or, in the event that the Borrower shall no longer be subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, are available) immediately preceding the date on which such Restricted Payment is made and after giving effect thereto is less than 4.00 to 1.00.
(d) The amount of declaration thereof, if all Restricted Payments (other than cash) shall be the Borrower would have been permitted to make such payment under this Section 6.08(a) Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Borrower or such declarationSubsidiary, as the case may be, pursuant to the Restricted Payment.
(be) The Borrower will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted Indebtednessthe ORBCOMM Notes, or any payment or other distribution (whether in cash, securities securities, or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance defeasance, or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Hedging Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) the payment of regularly scheduled payments of interest principal (including payments at maturity and fees any mandatory sinking fund or similar deposit), interest, fees, and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory payments of principal in an aggregate amount not to exceed $10,000,000 annuallyexpenses, in each case case, as and when due in respect of any Restricted Indebtednessthe ORBCOMM Notes;
(ii) payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as refinancings of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(iii) refinancings of Restricted Indebtedness ORBCOMM Notes to the extent not prohibited by Section 6.01; and
(iviii) other payments in respect of the ORBCOMM Notes, so long as, (A) no Event of Default has occurred and is continuing or shall result therefrom and (B) the payment Borrower shall have a minimum Liquidity of regularly scheduled payments of principal on the 2013 Notes and the Valor Bonds, in each case pursuant to the terms thereof as in effect on the Second ARCA Effective Date$8,000,000.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (ORBCOMM Inc.)
Restricted Payments; Certain Payments of Debt. (a) The Borrower will not, not and will not permit any of its Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, exceptexcept that:
(i) the Borrower and its Subsidiaries may declare make payments to Affiliates of fees or compensation for services which are in the nature of management, corporate overhead or administrative services to the extent such payments are reflected in the then effective Approved Budget or Business Plan and pay the Special Dividenddo not exceed arm's-length pricing in an aggregate amount not to exceed $500,000 in any Fiscal Year;
(ii) the Borrower and its Subsidiaries may declare and pay dividends with respect to its Equity Interests payable solely in additional (including paid-in-kind dividends) on any shares of its common capital stock in shares of capital stock of the same class as (or a class junior to) such class of capital stock;
(iii) Subsidiaries any Subsidiary may declare and pay dividends ratably with respect and make any other distribution of cash, property or assets to their Equity Interests;any other Subsidiary or to the Borrower; and
(iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held Borrower may repurchase its capital stock owned by any current employees or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) employees so long as (x) no Dividend Suspension Period or Event of Default has occurred and is continuing in existence hereunder at the time of such repurchase or would result therefrom, the declaration occur after giving effect thereto and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(viiy) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Periodaggregate amount paid, or Event of Default has occurred and is continuing or would result therefromproposed to be paid, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may such repurchase, acquire or redeemwhen aggregated with all previous repurchases of its capital stock made since the date hereof, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declaration1,000,000 per year.
(b) The Borrower will not, not and will not permit any of its Subsidiaries Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted IndebtednessDebt, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance retirement, acquisition, cancellation or termination of any such IndebtednessDebt, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
except (i) the payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory principal payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
Senior Facility Debt and (ii) payments in respect optional prepayments of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at Senior Facility Debt constituting revolving loans made under the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(iii) refinancings of Restricted Indebtedness to the extent not prohibited by Section 6.01; and
(iv) the payment of regularly scheduled payments of principal on the 2013 Notes and the Valor Bonds, in each case pursuant to the terms thereof total revolving credit commitment as in effect on the Second ARCA Effective Datedate hereof (it being understood that payments such as break funding payments, tax gross-up payments, indemnity payments, reimbursement of expenses payments of fees and like payments are not restricted by the provisions of this subsection (b)).
Appears in 1 contract
Samples: Bridge Financing Agreement (Choice One Communications Inc)
Restricted Payments; Certain Payments of Debt. (a) The Borrower None of the Obligors will, nor will not, and will not they permit any of its Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:except (and provided, however, that the Borrower or any Subsidiary may not during the Senior Term Period declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment or incur any obligation (contingent or otherwise) to do so pursuant to any of the clauses (iii), (iv), (v), (vi), (vii) or (viii) below):
(i) the Borrower may declare and pay the Special Dividend;
(ii) the Parent Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stockEquity Interests in Parent Borrower;
(iiiii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iii) the Parent Borrower may (A) use the proceeds of the Term Loan Debt to pay the Original Closing Date Dividend and (B) make other Restricted Payments not exceeding $5,000,000 from and after the Original Closing Date, in each case pursuant to and in accordance with stock option plans, equity purchase programs or agreements or other benefit plans, in each case for management or employees or former employees of the Parent Borrower and the Subsidiaries; Parent Borrower and its Subsidiaries may declare to make, or make, any Restricted Payment in connection with the Seventh Amendment Transactions on the Seventh Amendment Effective Date (but not, for the avoidance of doubt, any Restricted Payments made directly or indirectly in cash);
(iv) the repurchase, redemption or Parent Borrower may make other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreementRestricted Payments; provided that at the aggregate price paid for all time of and immediately after giving effect to such repurchasedRestricted Payments (and any Debt incurred in connection therewith), redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal yearsRequired Conditions are met; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”[reserved];
(v) the making of any payment in exchange for, or out each of the net cash proceeds Parent Borrower and Blitz K16-102 GmbH, a limited liability company organized under the laws of a contribution Germany, may pay purchase price adjustments required to be paid by such Person pursuant to the common equity Westfalia Purchase Agreement, without giving effect to any amendment thereto not specifically described in the definition of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds“Westfalia Purchase Agreement”;[reserved];
(vi) so long as no Dividend Suspension Period the Parent Borrower may make any Restricted Payments in respect of Permitted Convertible Indebtedness permitted under Section 10.2.8(b);Parent Borrower may make payments or Event deliveries in shares of Default has occurred common stock and is continuing or would result therefromcash in lieu of fractional shares required by the terms of, and otherwise perform its obligations under, the declaration Convertible Notes Indenture (including, without limitation, making payments of interest and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred principal thereon and/or making deliveries (other than in accordance with this Agreementcash) due upon conversion thereof);
(vii) the repurchase of Equity Interests deemed to occur upon Parent Borrower may pay the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;premium in respect of, and otherwise perform its obligations under, any Permitted Bond Hedge Transaction; and
(viii) so long as no Dividend Suspension Period, the Parent Borrower may make any Restricted Payments and/or payments or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends deliveries required by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeemterms of, and may declare and pay dividends onotherwise perform its obligations under, its common stock in an aggregate amount which does not exceed the sum any Permitted Warrant Transaction (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects making payments and/or deliveries due upon exercise and settlement or termination thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declaration. [reserved].
(b) The Borrower None of the Obligors will, nor will not, and will not they permit any of its Subsidiaries Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted Debt or any fees or PIK Amount (as defined in the First Lien Term Loan Agreement) owing under Section 2.12(c) of the First Lien Term Loan Agreement or similar fees, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Debt, except (and provided, however, that the Borrower or any Subsidiary may not during the Senior Term Period make, or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance retirement, acquisition, cancellation or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect Indebtedness pursuant to any of the foregoingclauses (vi), except:(vii) or (ix) (other than as required to comply with its obligations as in effect on the Fourth Amendment Effective Date) below):
(i) payment of Debt created under the Loan Documents;
(ii) (A) payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory principal payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
(ii) Debt, other than payments in respect of Restricted Indebtedness, subordinated Debt prohibited by the subordination provisions thereof; provided that (Aa) no Dividend Suspension Period or Event cash interest payments under any Debt under the Second Lien Term Loan Agreement may be made, (b) except as provided in clause (B) below, no cash payment of Default has occurred any PIK Amount (as defined in the First Lien Term Loan Agreement) may be made until the Term Loan Maturity Date (as defined in the First Lien Term Loan Agreement), and is continuing at (c) any prepayment pursuant to Section 2.11(d) {Excess Cash Flow} of any Term Loan Agreement may only be made if on the time date of such payment or prepayment, after giving pro forma effect to such prepayment, the “Required Conditions” as in effect as of the Seventh Amendment Effective Date would result therefrom be satisfied, and (B) payment of any fees and/or PIK Amount due under Section 2.12(c) of the aggregate amount First Lien Term Loan Agreement (collectively, the “Cash PIK Obligations”) may be made; provided that, if on such date for payment of such payments does not exceed the sum (calculated as of the date of such payment Cash PIK Obligations, after giving effect to all other applications payment thereof, the Required Conditions (as defined in the ABL Credit Agreement as in effect as of Available Distributable Cash the Seventh Amendment Effective Date) would not be satisfied and Net Proceeds of sales or Available Equity Proceeds on such datedispositions permitted under Section 6.05(j) of the First Lien Term Loan Agreement (A“Net Sale Proceeds”) Available Distributable are not sufficient to fund the full amount of required principal repayment plus the Cash plus PIK Obligations, then the payment of any such Cash PIK Obligations (Bless any amount paid from Net Sale Proceeds after satisfying all principal prepayment obligations) Available Equity Proceeds;shall instead be due and payable on the earlier to occur of (i) the first date that the Required Conditions can be satisfied after giving effect to such payment and (ii) July 1, 2020.
(iii) refinancings of Restricted Indebtedness Debt to the extent not prohibited permitted by Section 6.01; and10.2.1;
(iv) subject to the Intercreditor Agreement, payment of regularly scheduled payments securedFirst Lien Secured Debt out of principal on the 2013 Notes and proceeds of any sale or transfer of the Valor Bonds, in each case pursuant to property or assets securing such Debt;
(v) payment of Second Lien Term Loan Debt solely with the terms thereof as in effect on proceeds of mandatory prepayments declined or waived by the Second ARCA Effective Date.First Lien Term Loan Lenders;
Appears in 1 contract
Samples: Loan Agreement (Horizon Global Corp)
Restricted Payments; Certain Payments of Debt. (a) The Borrower None of the Borrowers will, nor will not, and will not they permit any of its Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) the Borrower may declare and pay the Special Dividend;
(ii) the Parent Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stockEquity Interests in Parent Borrower;
(iiiii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iii) the Parent Borrower may (A) use the proceeds of the Term Loan Debt to pay the Closing Date Dividend and (B) make other Restricted Payments not exceeding $5,000,000 from and after the Closing Date, in each case pursuant to and in accordance with stock option plans, equity purchase programs or agreements or other benefit plans, in each case for management or employees or former employees of the Parent Borrower and the Subsidiaries; and
(iv) the repurchase, redemption or Parent Borrower may make other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreementRestricted Payments; provided that at the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale time of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment immediately after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of Restricted Payments (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock and any Debt incurred in connection with therewith), the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declarationRequired Conditions are met.
(b) The Borrower None of the Borrowers will, nor will not, and will not they permit any of its Subsidiaries Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted IndebtednessDebt, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance retirement, acquisition, cancellation or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoingDebt, except:
(i) payment of Debt created under the Loan Documents;
(ii) payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory principal payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
(ii) Debt, other than payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at subordinated Debt prohibited by the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceedssubordination provisions thereof;
(iii) refinancings of Restricted Indebtedness Debt to the extent not prohibited permitted by Section 6.0110.2.1;
(iv) payment of secured Debt out of the proceeds of any sale or transfer of the property or assets securing such Debt;
(v) [reserved];
(vi) payments of Debt with the Net Proceeds of an issuance of Equity Interests in Parent Borrower; and
(ivvii) the payment of regularly scheduled payments of principal on Debt; provided that at the 2013 Notes time of and immediately after giving effect to such payment, the Required Conditions are met.
(c) None of the Borrowers will, nor will they permit any Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic Purchase Agreement related to any Restricted Debt, the payments required to be made by the Parent Borrower or the Subsidiaries thereunder are limited to the amount permitted under Section 10.2.8(b) and (iii) in the case of any Synthetic Purchase Agreement, the obligations of the Parent Borrower and the Valor Bonds, in each case pursuant Subsidiaries thereunder are subordinated to the Obligations on terms thereof as in effect on satisfactory to the Second ARCA Effective DateRequired Lenders.
Appears in 1 contract
Samples: Loan Agreement (Horizon Global Corp)
Restricted Payments; Certain Payments of Debt. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:except that, so long as it is permitted by law,
(i) the Borrower may declare and pay the Special Dividend;
(ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock;
(iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
continuing or would result therefrom, Orion may make (xiiiand Subsidiaries of Orion may make distributions to Orion so that Orion may make) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiv) the Borrower may pay any dividend within 90 days after the date cash distributions to current and former employees, officers, or directors of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declaration.
(b) The Borrower will not, and will not permit any of Orion or its Subsidiaries to(or any spouses, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted Indebtednessex-spouses, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account estates of the purchase, redemption, defeasance or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoing) on account of redemptions of Equity Interests of Orion held by such Persons; provided, except:that the aggregate amount of such redemptions made by Orion during the term of this Agreement does not exceed $1,500,000 per Fiscal Year,
(iii) the payment of regularly scheduled payments of interest and fees and dividends or other distributions by Subsidiaries of a Loan Party to such Loan Party;
(iii) Orion may purchase, redeem or otherwise acquire shares of its Equity Interests that are not Disqualified Equity Interests or warrants or options to acquire any such equity interests that are not Disqualified Equity Interests with the payment proceeds received from the substantially concurrent issue of expenses and, in the case new shares of the Alltel Xxxxxxx Xxxxx only, mandatory payments of principal its equity interests that are not Disqualified Equity Interests;
(iv) Loan Parties may make Tax Distributions;
(v) Restricted Payments in an aggregate amount not to exceed $10,000,000 annually1,000,000;
(vi) to the extent constituting Restricted Payments, the Loan Parties and their Subsidiaries may take the actions permitted by Section 7.02, Section 7.04(b), and Section 7.06(b);
(vii) Orion may declare and make dividend payments or other distributions, in each case as case, which are payable solely by the issuance of Equity Interests of Orion that are not Disqualified Equity Interests of such Person;
(viii) the Loan Parties may reimburse reasonable out-of-pocket costs and when due expenses incurred by any shareholder or other Affiliate of Loan Party in respect rendering, or in connection with, the management, transactional, financial or other corporate advisory services provided to Orion and/or its Subsidiaries, and may reimburse the reasonable fees and expenses of any third-party advisors and reasonable expenses associated with any business-related travel, and may undertake reasonable indemnification payments or reimbursements to such shareholder or other Affiliate providing such services, and
(ix) the payment of reasonable severance and director fees to any shareholder or other Affiliate of a Loan Party or one of its Subsidiaries in the ordinary course of business and consistent with industry practice, so long as it has been approved by such Loan Party's or such Subsidiary's board of directors (or comparable governing body) in accordance with applicable law;
(x) other Restricted Indebtedness;Payments, in an aggregate amount not to exceed $5,000,000 in any Fiscal Year of Orion, so long as the Payment Conditions are satisfied.
(b) Make any payment on account of, or redemption or acquisition for value of any portion of, any Earn-Out Obligations or any other Debt that has been contractually subordinated to the Obligations, except:
(i) to the extent such payment is permitted at such time under the applicable subordination terms;
(ii) payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time any refinancing of such payment or would result therefrom and (B) Debt with the aggregate amount proceeds of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity ProceedsDebt permitted under Section 7.03;
(iii) refinancings of Restricted Indebtedness to the extent not prohibited by Section 6.01[reserved]; and
(iv) any payment with respect to any Earn-Out Obligations that is paid solely and exclusively by the issuance of additional Equity Interests of Orion that are not Disqualified Equity Interests.
(c) Make any optional or voluntary prepayment, redemption, defeasance, purchase or other acquisition of any Debt of any Loan Party or its Subsidiaries, including the exercise of any purchase option in respect of any Specified Sale Leaseback Transaction, except:
(i) any refinancing of such Debt with the proceeds of other Debt permitted under Section 7.03;
(ii) any payment of regularly scheduled payments the Revolving Loan Obligations in accordance with this Agreement; and
(iii) other Debt (including any payment of principal on the 2013 Notes Term Loan Obligations and the Valor Bondsexercise of any purchase option in respect of any Specified Sale Leaseback Transaction) in accordance with the terms of this Agreement or such Debt, as applicable, so long as the Payment Conditions are satisfied. Notwithstanding the foregoing, in no event shall Orion, any other Borrower or any other Loan Party Dispose or otherwise transfer (whether as an in kind Restricted Payment or otherwise) any Material Intellectual Property or any of the Equity Interests of any Person that owns any Material Intellectual Property to any other Person other than to a Loan Party that is a Domestic Subsidiary, in each case pursuant to case, other than the terms thereof as non-exclusive licensing of Intellectual Property in effect on the Second ARCA Effective Dateordinary course of business.
Appears in 1 contract
Restricted Payments; Certain Payments of Debt. (a) The Borrower No Marvell Company will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except that (i) the Borrower may declare and pay the Special Dividend;
(ii) the Borrower may declare and pay dividends with respect to its Equity Interests capital stock payable solely in additional shares of its common stock;
, (iiiii) Subsidiaries any Subsidiary may declare and pay dividends ratably with respect to their Equity Interests;
its capital stock, (iii) the Borrower may declare or make Restricted Payments if at the time of, and after giving effect thereto, no Default shall have occurred and be continuing and the aggregate amount expended for all Restricted Payments made pursuant to this clause (iii) during any Fiscal Year would not exceed an amount equal to 15% of Consolidated Net Income calculated for the immediately preceding Fiscal Year and (iv) the repurchaseBorrower may declare or make Restricted Payments if at the time of, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employeeand after giving effect thereto, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that no Default shall have occurred and be continuing and the aggregate price paid amount expended for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts Restricted Payments made pursuant to this subclause clause (Aiv) being carried over to succeeding fiscal years; plus
(B) shall not at any time exceed the aggregate amount of net cash proceeds received by the Borrower since after the Effective Closing Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of any stock options or warrants the issuance of which is not prohibited by this Agreement with respect to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declarationstock.
(b) The Borrower No Marvell Company will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted IndebtednessDebt, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoingDebt, except:
(i) payment of Debt created under the Loan Documents;
(ii) payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory principal payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
(ii) Debt, except payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) Permitted Subordinated Debt prohibited by the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceedssubordination provisions thereof;
(iii) prepayments in connection with refinancings of Restricted Indebtedness Debt to the extent not prohibited permitted by Section 6.01; and
(iv) the payment of regularly scheduled payments secured Debt that becomes due as a result of principal on the 2013 Notes and voluntary sale or transfer of the Valor Bonds, in each case pursuant to the terms thereof as in effect on the Second ARCA Effective Dateproperty securing such Debt.
Appears in 1 contract
Restricted Payments; Certain Payments of Debt. (a) The Borrower None of the Obligors will, nor will not, and will not they permit any of its Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:except (and provided, however, that the Borrower or any Subsidiary may not during the Senior Term Period declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment or incur any obligation (contingent or otherwise) to do so pursuant to any of the clauses (iii), (iv), (v), (vi), (vii) or (viii) below):
(i) the Borrower may declare and pay the Special Dividend;
(ii) the Parent Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stockEquity Interests in Parent Borrower;
(iiiii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iii) the Parent Borrower may (A) use the proceeds of the Term Loan Debt to pay the Original Closing Date Dividend and (B) make other Restricted Payments not exceeding $5,000,000 from and after the Original Closing Date, in each case pursuant to and in accordance with stock option plans, equity purchase programs or agreements or other benefit plans, in each case for management or employees or former employees of the Parent Borrower and the Subsidiaries;
(iv) the repurchase, redemption or Parent Borrower may make other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreementRestricted Payments; provided that at the aggregate price paid for all time of and immediately after giving effect to such repurchasedRestricted Payments (and any Debt incurred in connection therewith), redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that Required Conditions are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”met;
(v) the making of any payment in exchange for, or out each of the net cash proceeds Parent Borrower and Blitz K16-102 GmbH, a limited liability company organized under the laws of a contribution Germany, may pay purchase price adjustments required to be paid by such Person pursuant to the common equity Westfalia Purchase Agreement, without giving effect to any amendment thereto not specifically described in the definition of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds“Westfalia Purchase Agreement”;
(vi) so long as no Dividend Suspension Period or Event the Parent Borrower may make any Restricted Payments in respect of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this AgreementPermitted Convertible Indebtedness permitted under Section 10.2.8(b);
(vii) the repurchase of Equity Interests deemed to occur upon Parent Borrower may pay the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;premium in respect of, and otherwise perform its obligations under, any Permitted Bond Hedge Transaction; and
(viii) so long as no Dividend Suspension Period, the Parent Borrower may make any Restricted Payments and/or payments or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends deliveries required by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeemterms of, and may declare and pay dividends onotherwise perform its obligations under, its common stock in an aggregate amount which does not exceed the sum any Permitted Warrant Transaction (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects making payments and/or deliveries due upon exercise and settlement or termination thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declaration.
(b) The Borrower None of the Obligors will, nor will not, and will not they permit any of its Subsidiaries Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted Debt, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Debt, except (and provided, however, that the Borrower or any Subsidiary may not during the Senior Term Period make, or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance retirement, acquisition, cancellation or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect Indebtedness pursuant to any of the foregoingclauses (vi), except:(vii) or (ix) (other than as required to comply with its obligations as in effect on the Fourth Amendment Effective Date) below):
(i) payment of Debt created under the Loan Documents;
(ii) payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory principal payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
(ii) Debt, other than payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at subordinated Debt prohibited by the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceedssubordination provisions thereof;
(iii) refinancings of Restricted Indebtedness Debt to the extent not prohibited permitted by Section 6.0110.2.1;
(iv) payment of secured Debt out of the proceeds of any sale or transfer of the property or assets securing such Debt;
(v) [reserved];
(vi) payments of Debt with the Net Proceeds of an issuance of Equity Interests in Parent Borrower;
(vii) payments of Debt; provided that at the time of and immediately after giving effect to such payment, the Required Conditions are met;
(viii) the Parent Borrower may make any deliveries in shares of common stock (or other securities or property following a merger event or other change of the common stock of the Parent Borrower so long as any such securities do not constitute Disqualified Equity Interests of an Obligor) in connection with any conversion of any Permitted Convertible Indebtedness;
(ix) the Parent Borrower may make any cash payments in lieu of issuing fractional shares in connection with a conversion (including pursuant to any put transaction), exchange, refinancing or extension of any Permitted Convertible Indebtedness; and
(ivx) the Parent Borrower may purchase any Permitted Bond Hedge Transaction and perform its obligations thereunder.
(c) None of the Obligors will, nor will they permit any Subsidiary to, enter into or be party to, or make any payment of regularly scheduled payments of principal on the 2013 Notes and the Valor Bondsunder, any Synthetic Purchase Agreement unless , in each case pursuant except during the Senior Term Period, (i) in the case of any Synthetic Purchase Agreement related to any Restricted Debt, the payments required to be made by the Parent Borrower or the Subsidiaries thereunder are limited to the amount permitted under Section 10.2.8(b) and (iii) in the case of any Synthetic Purchase Agreement, the obligations of the Parent Borrower and the Subsidiaries thereunder are subordinated to the Obligations on terms thereof as in effect on satisfactory to the Second ARCA Effective DateRequired Lenders.
Appears in 1 contract
Samples: Loan Agreement (Horizon Global Corp)
Restricted Payments; Certain Payments of Debt. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) the Borrower may declare and pay the Special Dividend;
(ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock;
(iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declaration.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) the payment of regularly scheduled payments of principal (including payments at maturity and any mandatory sinking fund or similar deposit), interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory payments of principal in an aggregate amount not to exceed $10,000,000 annuallyexpenses, in each case as and when due in respect of any Restricted Indebtedness;
(ii) payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Indebtedness with Available Equity Proceeds on such date) or in the form of Equity Interests of the Borrower (A) Available Distributable Cash plus (B) Available Equity Proceedsother than Disqualified Stock);
(iii) refinancings of Restricted Indebtedness (including by way of an exchange therefor of Permitted Refinancing Indebtedness or Permitted Additional Debt) to the extent not prohibited by Section 6.01;
(iv) [Reserved];
(v) payments or distributions in respect of Restricted Indebtedness; provided that (A) no Event of Default has occurred and is continuing or shall result therefrom, (B) the Borrower shall be in compliance with Sections 6.14 and 6.15, determined on a Pro Forma Basis and (C) the Secured Leverage Ratio on a Pro Forma Basis computed as of the last day of the most recently-ended Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b) shall not exceed 2.0 to 1.0; and
(ivvi) the payment prepayment or redemption of regularly scheduled payments of principal on Permitted Escrow Notes with the 2013 related Notes and the Valor Bonds, in each case Escrowed Proceeds pursuant to the terms thereof as in effect on the Second ARCA Effective Datea Permitted Mandatory Redemption Provision.
Appears in 1 contract
Samples: Credit Agreement Refinancing Amendment (Windstream Corp)
Restricted Payments; Certain Payments of Debt. (a) The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) the Borrower may declare and pay the Special Dividend;
(ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock;
(iii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchange, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (B) no Default or Event of Default shall have occurred and be continuing;
(xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xiv) the Borrower may pay any dividend within 90 days after the date of declaration thereof, if the Borrower would have been permitted to make such payment under this Section 6.08(a) on the date of such declaration.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any such Indebtedness, or any payment (including, without limitation, any payment under a Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) the payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
(ii) payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(iii) refinancings of Restricted Indebtedness to the extent not prohibited by Section 6.01; and
(iv) the payment of regularly scheduled payments of principal on the 2013 Notes and the Valor Bonds, in each case pursuant to the terms thereof as in effect on the Second ARCA Effective Date.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Windstream Corp)
Restricted Payments; Certain Payments of Debt. (a) The No Borrower Group Company will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except that (i) the Borrower may declare and pay the Special Dividend;
(ii) the Borrower may declare and pay dividends with respect to its Equity Interests capital stock payable solely in additional shares of its common stock;
, (iiiii) Subsidiaries any Subsidiary may declare and pay dividends ratably with respect to its capital 66 stock, (iii) the Borrower may repurchase shares of its Equity Interests from employees of the Borrower or any of its Subsidiaries upon their Equity Interests;
death, termination or retirement, so long as, before and after giving effect to such repurchase, (x) no Default shall have occurred and be continuing and (y) the aggregate consideration for all such repurchases made after the date hereof does not exceed $3,000,000 plus proceeds of equity issuances to employees, (iv) the repurchase, redemption or other acquisition or retirement for value Borrower may repurchase shares of any its Equity Interests of at any Wireline Company held by any current or former employee, consultant or director of any Wireline Company pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed the sum of:
(A) $20,000,000, with unused amounts pursuant to this subclause (A) being carried over to succeeding fiscal years; plus
(B) the aggregate net cash proceeds received by the Borrower since the Effective Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Borrower to any current or former employee, consultant or director of any Wireline Company; provided that the amount of any such net cash proceeds that are used to permit a repurchase, redemption or other acquisition under this subclause (B) will be excluded from clause (a) of the definition of “Available Equity Proceeds”;
(v) the making of any payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Borrower or a substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests (other than Disqualified Stock) of the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such payment will be excluded for the purposes of calculating Available Equity Proceeds;
(vi) time so long as no Dividend Suspension Period or Event of Default has occurred as, before and is continuing or would result therefrom, the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Borrower issued or incurred in accordance with this Agreement;
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants the issuance of which is not prohibited by this Agreement to the extent that such Equity Interests represent all or a portion of the exercise price thereof;
(viii) so long as no Dividend Suspension Period, or Event of Default has occurred and is continuing or would result therefrom, the repurchase of Equity Interests of the Borrower constituting fractional shares in an aggregate amount since the Effective Date not to exceed $100,000;
(ix) the payment of dividends by the Borrower on its common stock in an amount not to exceed $237,500,000 in the aggregate for the first two quarterly dividend payments made after the Effective Date;
(x) the payment of the Special Stub Dividend;
(xi) so long as no Dividend Suspension Period or Event of Default has occurred and is continuing or would result therefrom, the Borrower may repurchase, acquire or redeem, and may declare and pay dividends on, its common stock in an aggregate amount which does not exceed the sum (calculated as of the date of such dividend payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on any such date) of (A) Available Distributable Cash plus (B) Available Equity Proceeds;
(xii) the redemption of the Borrower’s common stock in connection with the Directories Equity Exchange; provided that
(A) the final terms and conditions of each aspect of the Directories Transactions, including, without limitation, all tax aspects thereof, shall be 1) substantially as described in the Information Memorandum and otherwise consistent in all material respects with the description thereof received by the Lenders in writing prior to the date hereof and 2) otherwise reasonably satisfactory to the Administrative Agent;
(B) the Administrative Agent shall have received copies of the Directories Transaction Documents, certified by a Financial Officer as complete and correct, and shall be reasonably satisfied with the terms and conditions thereof;
(C) the Directories Equity Exchange shall have been consummated in accordance with the terms of the applicable Directories Transaction Documents; and
(D) immediately after giving effect (on a Pro Forma Basis in the case of clause (B)) to the Directories Equity Exchangerepurchase, (A) the representation and warranty set forth in Section 3.03 shall be true and correct in all respects and (Bx) no Default or Event of Default shall have occurred and be continuing;
, (xiii) other Restricted Payments in an aggregate amount not exceeding $50,000,000; and
(xivy) the Borrower may pay any dividend within 90 days aggregate unused amount of the Revolving Commitments shall be equal to or greater than $17,500,000 and (z) the aggregate consideration for all of such repurchases made after the date hereof does not exceed the sum of declaration thereof, if (A) $3,500,000 plus (B) in the case of any such repurchases made on or after the date on which the Borrower would have been permitted has delivered the Required 2003 Financials, 50% of Consolidated Net Income for each Fiscal Year ended prior to make such payment under this Section 6.08(a) on the date of such declarationrepurchases (commencing with the Fiscal Year ended September 30, 2003) minus an amount equal to the excess of (X) the aggregate consideration for all Business Acquisitions consummated from and after the date hereof in reliance on Section 6.04(g) over (Y) $25,000,000. Solely for purposes of calculating the amount in Subsection 6.08(z)(B) above, if Consolidated Net Income (as adjusted to exclude one time restructuring and plant closing charges that are non-cash charges, and to the extent applicable, in accordance with clause (2) below) for any Fiscal Year is less than zero (such negative number for any Fiscal Year, the "Negative Carry-Forward Amount"), (1) Consolidated Net Income for such Fiscal Year shall be deemed to be zero and (2) the Negative Carry-Forward Amount in respect of such Fiscal Year shall be applied to reduce Consolidated Net Income for the succeeding Fiscal Year.
(b) The No Borrower Group Company will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Restricted IndebtednessDebt, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance or termination of any such Indebtedness, or any payment Debt (including, without limitation, any payment in respect of Restricted Debt under a Swap Synthetic Purchase Agreement) that has a substantially similar effect to any of the foregoing), except:
(i) payment of Debt created under the Loan Documents;
(ii) payment of regularly scheduled payments of interest and fees and the payment of expenses and, in the case of the Alltel Xxxxxxx Xxxxx only, mandatory principal payments of principal in an aggregate amount not to exceed $10,000,000 annually, in each case as and when due in respect of any Restricted Indebtedness;
(ii) Debt, except payments in respect of Restricted Indebtedness, provided that (A) no Dividend Suspension Period or Event of Default has occurred and is continuing at the time of such payment or would result therefrom and (B) Subordinated Debt prohibited by the aggregate amount of such payments does not exceed the sum (calculated as of the date of such payment after giving effect to all other applications of Available Distributable Cash or Available Equity Proceeds on such date) of (A) Available Distributable Cash plus (B) Available Equity Proceedssubordination provisions thereof;
(iii) refinancings of Restricted Indebtedness Debt to the extent not prohibited permitted by Section 6.01;
(iv) payment of secured Debt that becomes due as a result of the voluntary sale or transfer of the property securing such Debt;
(v) payment of intercompany debt owing;
(vi) payment of Debt that is permitted under Section 6.01(vi); and
(ivvii) payment of Debt that is permitted under Section 6.01(vii).
(c) The Borrower will not enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic Purchase Agreement related to any Equity Interests, (A) the payment of regularly scheduled payments of principal on the 2013 Notes and the Valor Bonds, in each case pursuant required to be made thereunder are limited to the amount permitted under subsection Section 6.08 of this Section and (B) the obligations of the Borrower thereunder are subordinated to the Secured Obligations on terms thereof satisfactory to the Required Lenders; and (ii) in the case of any Synthetic Purchase Agreement related to any Subordinated Debt, (A) the payments required to be made thereunder are limited to the amount permitted under subsection (b) of this Section and (B) the obligations of the Borrower thereunder are subordinated to the Secured Obligations to at least the same extent as in effect on the Second ARCA Effective DateSubordinated Debt to which such Synthetic Purchase Agreement relates. The Borrower shall promptly deliver to the Administrative Agent a copy of any Synthetic Purchase Agreement to which it becomes party. The Borrower will not permit any Subsidiary to enter into, be party to, or make any payment under any Synthetic Purchase Agreement.
Appears in 1 contract
Samples: Credit Agreement (Integrated Energy Technologies Inc)
