Restricted Payments; Certain Payments of Indebtedness; Synthetic Purchase Agreements. (a) The Parent Borrower will not, nor will it permit any 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 Parent Borrower may declare and pay dividends with respect to its capital stock payable solely in additional shares of its common stock, (ii) Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) the Parent Borrower may make Restricted Payments, not exceeding $5,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Parent Borrower and its Subsidiaries, (iv) repurchases of capital stock of the Parent Borrower deemed to occur upon the exercise of stock options if such capital stock represents a portion of the exercise price thereof and repurchase of capital stock deemed to occur upon the withholding of a portion of the capital stock issued, granted or awarded to an employee or director to pay for the taxes payable by such employee or director upon such issuance, grant or award, (v) if (A) in the case of a dividend, at the time declared no Event of Default has occurred and is continuing, (B) in the case of any other Restricted Payment, at the time made and after giving effect thereto no Default has occurred and is continuing and (C) in the case of each Restricted Payment, immediately after giving effect to any payment thereof there shall be an aggregate of at least $100,000,000 of unutilized Revolving Commitments and Permitted Investments, the Parent Borrower may make Restricted Payments in cash in an amount that will not result in the cumulative amount of all such Restricted Payments permitted by this clause (v) made after the Effective Date (after giving effect to Restricted Payments consisting of dividends declared and not yet paid) exceeding the sum of $20,000,000 plus 25% of the sum of Consolidated Net Income for each fiscal year (if any) ended on or after May 31, 2006, and prior to the date of such Restricted Payment (or the declaration thereof, in the case of a dividend) for which financial statements are available plus 25% of the Net Proceeds received by or on behalf of the Parent Borrower after the Effective Date in respect of offerings by the Parent Borrower of Equity Interests in compliance with the terms of this Agreement (other than (A) in respect of offerings by the Parent Borrower to any Subsidiary and (B) to the extent any such Net Proceeds are applied pursuant to any provision of this Agreement that allows funds to be applied for a particular purpose based upon Net Proceeds of Equity Interests issued by the Parent Borrower), (vi) if at the time declared no Event of Default has occurred and is continuing, the Parent Borrower may declare and pay dividends with respect to its preferred stock and other preferred Equity Interests issued in accordance with Section 6.01(b) in an amount that will not result in the cumulative amount of all such dividends permitted by this clause (vi) paid during any fiscal year of the Parent Borrower exceeding $20,000,000, and (vii) any Subsidiary may purchase or redeem any portion of its Equity Interests, provided that, following any such purchase or redemption, such Subsidiary is a direct or indirect wholly owned Subsidiary of the Parent Borrower. (b) The Parent Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any voluntary or optional 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 voluntary or optional 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, cancelation or termination of any Indebtedness, except: (i) payment of Indebtedness created under this Agreement; (ii) refinancings of Indebtedness to the extent permitted by Section 6.01; (iii) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; (iv) prepayment of Indebtedness outstanding under the Existing Loan Agreements on the Effective Date; (v) payments of Indebtedness owing to a Loan Party; and (vi) payments made to prepay, repurchase or redeem Junior Debt Securities; provided that any such payment shall be permitted under this clause (vi) only if (A) either (1) such payment is made with the Net Proceeds of either Equity Interests issued by the Parent Borrower in compliance with this Agreement or Permitted Refinancing Securities, in either case within 60 days after receipt of such Net Proceeds (and, if not so applied on the date of receipt of such Net Proceeds, such Net Proceeds shall be deposited and held in a restricted account, established on terms and pursuant to procedures reasonably satisfactory to the Administrative Agent, for the purpose of making such payment) or (2) at the time of and after giving effect to such payment, the Leverage Ratio is less than 2.5 to 1.0 and the total Revolving Commitments exceeds the sum of the total Revolving Exposures and the Local Currency Loan Exposure by at least $200,000,000,
Appears in 1 contract
Samples: Credit Agreement (Mosaic Co)
Restricted Payments; Certain Payments of Indebtedness; Synthetic Purchase Agreements. (a) The Parent Borrower will not, nor will it permit any 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 Parent Borrower may declare and pay dividends with respect to its capital stock payable solely in additional shares of its common stock, (ii) Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) the Parent Borrower may make Restricted Payments, not exceeding $5,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Parent Borrower and its Subsidiaries, (iv) repurchases of capital stock of the Parent Borrower deemed to occur upon the exercise of stock options if such capital stock represents a portion of the exercise price thereof and repurchase of capital stock deemed to occur upon the withholding of a portion of the capital stock issued, granted or awarded to an employee or director to pay for the taxes payable by such employee or director upon such issuance, grant or award, (v) if (A) in the case of a dividend, at the time declared no Event of Default has occurred and is continuing, (B) in the case of any other Restricted Payment, at the time made and after giving effect thereto no Default has occurred and is continuing and (C) in the case of each Restricted Payment, immediately after giving effect to any payment thereof there shall be an aggregate of at least $100,000,000 of unutilized Revolving Commitments and Permitted Investments, the Parent Borrower may make Restricted Payments in cash in an amount that will not result in the cumulative amount of all such Restricted Payments permitted by this clause (v) made after the Original Effective Date (after giving effect to Restricted Payments consisting of dividends declared and not yet paid) exceeding the sum of $20,000,000 plus 25% of the sum of Consolidated Net Income for each fiscal year (if any) ended on or after May 31, 2006, and prior to the date of such Restricted Payment (or the declaration thereof, in the case of a dividend) for which financial statements are available plus 25% of the Net Proceeds received by or on behalf of the Parent Borrower after the Original Effective Date in respect of offerings by the Parent Borrower of Equity Interests in compliance with the terms of this Agreement (other than (A) in respect of offerings by the Parent Borrower to any Subsidiary and (B) to the extent any such Net Proceeds are applied pursuant to any provision of this Agreement that allows funds to be applied for a particular purpose based upon Net Proceeds of Equity Interests issued by the Parent Borrower), (vi) if at the time declared no Event of Default has occurred and is continuing, the Parent Borrower may declare and pay dividends with respect to its preferred stock and other preferred Equity Interests issued in accordance with Section 6.01(b) in an amount that will not result in the cumulative amount of all such dividends permitted by this clause (vi) paid during any fiscal year of the Parent Borrower exceeding $20,000,000, and (vii) any Subsidiary may purchase or redeem any portion of its Equity Interests, provided that, following any such purchase or redemption, such Subsidiary is a direct or indirect wholly owned Subsidiary of the Parent Borrower, and (viii) the Parent Borrower or any of its Subsidiaries may consummate Florida Land Transactions provided that the aggregate net book value of all assets of the Parent Borrower and its Subsidiaries subject to Florida Land Transactions and all investments in Florida Land Subsidiaries consummated since the Restatement Effective Date shall not exceed $150,000,000 in the aggregate; provided further that the net book value of any such asset shall be its net book value as of the date of the most recent available internal financial statements of the Parent Borrower and its consolidated Subsidiaries prior to the Florida Land Transaction involving such asset or the making of such investment.
(b) The Parent Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any voluntary or optional 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 voluntary or optional 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, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under this Agreement;
(ii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iii) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(iv) prepayment of Indebtedness outstanding under the Existing Loan Agreements Global Credit Agreement on the Original Effective Date;
(v) payments of Indebtedness owing to a Loan Party; and;
(vi) payments made to prepay, repurchase or redeem Junior Debt Securities; provided that any such payment shall be permitted under this clause (vi) only if (A) either (1) such payment is made with the Net Proceeds of either Equity Interests issued by the Parent Borrower in compliance with this Agreement or Permitted Refinancing Securities, in either case within 60 days after receipt of such Net Proceeds (and, if not so applied on the date of receipt of such Net Proceeds, such Net Proceeds shall be deposited and held in a restricted account, established on terms and pursuant to procedures reasonably satisfactory to the Administrative Agent, for the purpose of making such payment) or (2) at the time of and after giving effect to such payment, the Leverage Ratio is less than 2.5 to 1.0 and the total Revolving Commitments exceeds the sum of the total Revolving Exposures and the Local Currency Loan Exposure by at least $200,000,000,, (B) no Default exists at the time of and after giving effect to such payment, (C) the Junior Debt Securities prepaid, repurchased or redeemed pursuant to such payment are retired and canceled and (D) the Parent Borrower shall deliver to the Administrative Agent a certificate signed on behalf of the Parent Borrower by a Financial Officer to the effect that the conditions set forth in clauses (A), (B) and (C) above are satisfied;
(vii) payments and reborrowings under revolving credit facilities otherwise permitted as Indebtedness under this Agreement; provided that voluntary termination of lending commitments under such revolving credit facilities shall not be permitted unless (A) treated as a voluntary prepayment of the Indebtedness thereunder and otherwise allowed under this Section or (B) such commitments are replaced or refinanced pursuant to a revolving credit facility otherwise permitted as Indebtedness under this Agreement within a reasonable time following such termination;
(viii) payments made for open market repurchases of Junior Debt Securities not otherwise permitted under this Section 6.08(b); provided that any such payment shall be permitted under this clause (viii) only if (A) no Default exists at the time of and after giving effect to such payment, (B) at the time of and after giving effect to such payment, the Leverage Ratio is less than 3.75 to 1.0 and the total Revolving Commitments exceeds the sum of the total Revolving Exposure and the Local Currency Exposure by at least $250,000,000, (C) the sum of such payments made in reliance upon this clause (viii) in any fiscal year shall not exceed $40,000,000, (D) the Indebtedness so repurchased pursuant to such payments is retired and canceled and (E) the Parent Borrower shall deliver to the Administrative Agent a certificate signed on behalf of the Parent Borrower by a Financial Officer to the effect that the conditions set forth in clauses (A), (B), (C) and (D) above are satisfied;
(ix) payments made for repurchases pursuant to tender offers in respect of Junior Debt Securities not otherwise permitted under this Section 6.08(b); provided that any such payment shall be permitted under this clause (ix) only if (A) no Default exists at the time of and after giving effect to such payment, (B) prior to commencing any such tender offer, the Primary Borrowers shall have notified the Administrative Agent (which shall promptly notify the Lenders) of their offer to either (x) optionally prepay the Term Loans pursuant to Section 2.11(a) in an aggregate principal amount specified in such notice or (y), unless such offer of prepayment is accepted by the Required Lenders, to utilize cash in an equal amount (or, if such offer of prepayment of the Term Loans is an offer to prepay the Term Loans in full, a greater amount specified in such notice) to repurchase Junior Debt Securities pursuant to one or more tender offers, (C) the Required Lenders shall not have notified the Administrative Agent within five Business Days after receipt of such notice of their election to accept such offer to prepay Term Loans in such aggregate principal amount, (D) the payments made pursuant to any such tender offer shall be made within 60 days after the expiration of such five Business Day period and shall not exceed the aggregate principal amount of prepayments of Term Loans specified in the notice referred to in clause (B) above (or the greater amount specified in such notice, if such notice offered to prepay the Term Loans in full), (E) the Indebtedness so repurchased pursuant to such payments is retired and canceled and (F) the Parent Borrower shall deliver to the Administrative Agent a certificate signed on behalf of the Parent Borrower by a Financial Officer to the effect that the conditions set forth in clauses (A), (B), (C), (D) and (E) above are satisfied; and
(x) payments made in connection with the consummation of the Debt Tender Offers on the Restatement Effective Date and the redemption and repayment of any of the Global Borrower’s 11.25% senior notes due 2011 that are not tendered and repurchased pursuant to the Debt Tender Offers.
(c) The Parent Borrower will not, nor will it permit any Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement, except any Synthetic Purchase Agreement entered into by the Parent Borrower with respect to Indebtedness of the Parent Borrower (other than Loans) and payments thereunder provided that the optional prepayment or redemption of such Indebtedness would be permitted under paragraph (b) of this Section at the time such Synthetic Purchase Agreement is entered into (other than pursuant to a refinancing). The Parent Borrower shall promptly deliver to the Administrative Agent a copy of any Synthetic Purchase Agreement to which it becomes party.
Appears in 1 contract
Samples: Credit Agreement (Mosaic Co)
Restricted Payments; Certain Payments of Indebtedness; Synthetic Purchase Agreements. (a) The Parent Borrower Company will not, nor will it permit any 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 Parent Borrower Company may declare and pay dividends with respect to its capital stock payable solely in additional shares of its common stock, (ii) Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) the Parent Borrower Company may make Restricted Payments, not exceeding $5,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Parent Borrower Company and its Subsidiaries, (iv) PLP may make distributions of distributable cash as required under the PLP Partnership Agreement, (v) repurchases of capital stock of the Parent Borrower Company deemed to occur upon the exercise of stock options if such capital stock represents a portion of the exercise price thereof and repurchase of capital stock deemed to occur upon the withholding of a portion of the capital stock issued, granted or awarded to an employee or director to pay for the taxes payable by such employee or director upon such issuance, grant or award, (vvi) Permitted PLP Purchases, and (vii) if (A) in the case of a dividend, at the time declared no Event of Default has occurred and is continuing, (B) in the case of any other Restricted Payment, at the time made Company may declare and after giving effect thereto no Default has occurred and is continuing and (C) in the case of each Restricted Payment, immediately after giving effect pay dividends with respect to any payment thereof there shall be an aggregate of at least $100,000,000 of unutilized Revolving Commitments and Permitted Investments, the Parent Borrower may make Restricted Payments in cash its common stock in an amount that will not result in the cumulative amount of all such Restricted Payments dividends permitted by this clause (vvii) made paid after the Effective Date (after giving effect to Restricted Payments consisting of dividends declared and not yet paid) exceeding the sum of $20,000,000 plus 25% of the sum of Consolidated Net Income for each fiscal year (if any) ended on or after May December 31, 20062001, and prior to the date of declaration of such Restricted Payment (or the declaration thereof, in the case of a dividend) dividend for which financial statements are available plus 25% of the Net Proceeds received by or on behalf of the Parent Borrower after the Effective Date in respect of offerings by the Parent Borrower of Equity Interests in compliance with the terms of this Agreement (other than (A) in respect of offerings by the Parent Borrower to any Subsidiary and (B) to the extent any such Net Proceeds are applied pursuant to any provision of this Agreement that allows funds to be applied for a particular purpose based upon Net Proceeds of Equity Interests issued by the Parent Borrower), (vi) if at the time declared no Event of Default has occurred and is continuing, the Parent Borrower may declare and pay dividends with respect to its preferred stock and other preferred Equity Interests issued in accordance with Section 6.01(b) in an amount that will not result in the cumulative amount of all such dividends permitted by this clause (vi) paid during any fiscal year of the Parent Borrower exceeding $20,000,000, and (vii) any Subsidiary may purchase or redeem any portion of its Equity Interests, provided that, following any such purchase or redemption, such Subsidiary is a direct or indirect wholly owned Subsidiary of the Parent Borroweravailable.
(b) The Parent Borrower Company will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any voluntary or optional 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 voluntary or optional 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, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under this Agreement;
(ii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iii) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(iv) prepayment of Indebtedness outstanding under payments made to purchase 6.625% Notes pursuant to the Existing Loan Agreements on the Effective Date6.625% Notes Tender Offer;
(v) payments of Indebtedness owing to a Loan Party; and
(vi) after the Salt Disposition is consummated, payments made to prepay, repurchase or redeem Junior Debt Securitiesthe 7.4% Notes or other Indebtedness of the Company referred to in the definition of the term "Salt Disposition Escrow"; provided that any such payment payments shall be permitted under this clause (v) only to the extent of funds available therefor on deposit in the Salt Disposition Escrow;
(vi) if the Polk County IRBs are refinanced prior to being repaid, payments made to prepay, repurchase or redeem other Indebtedness of the Company referred to in the definition of the term "Polk Escrow"; provided that payments shall be permitted under this clause (vi) only if to the extent of funds available therefor on deposit in the Polk Escrow;
(Avii) either payments made to purchase Polk County IRBs prior to the refinancing, redemption or repayment thereof, as contemplated by and in accordance with Section 5.15;
(1viii) such payments made to terminate the Argus Lease in the manner contemplated in the definition of the term "Net Proceeds";
(ix) prepayment of Indebtedness outstanding under the Existing Credit Agreements on the Effective Date; and
(x) payments of Indebtedness owing to a Loan Party.
(c) The Company will not, nor will it permit any Subsidiary to, enter into or be party to, or make any payment is made with under, any Synthetic Purchase Agreement, except (i) the Net Proceeds of either Equity Interests issued Existing Synthetic Purchase Agreement and payments thereunder and (ii) any Synthetic Purchase Agreement entered into by the Parent Borrower in compliance Company with this Agreement respect to Indebtedness of the Company (other than Loans) and payments thereunder provided that the optional prepayment or Permitted Refinancing Securities, in either case within 60 days after receipt redemption of such Net Proceeds Indebtedness would be permitted under paragraph (and, if not so applied on the date b) of receipt of such Net Proceeds, such Net Proceeds shall be deposited and held in a restricted account, established on terms and pursuant to procedures reasonably satisfactory to the Administrative Agent, for the purpose of making such payment) or (2) this Section at the time such Synthetic Purchase Agreement is entered into (other than pursuant to a refinancing). The Company shall promptly deliver to the Agents a copy of and after giving effect any Synthetic Purchase Agreement to such payment, the Leverage Ratio is less than 2.5 to 1.0 and the total Revolving Commitments exceeds the sum of the total Revolving Exposures and the Local Currency Loan Exposure by at least $200,000,000,which it becomes party.
Appears in 1 contract
Samples: Credit Agreement (Imc Global Inc)
Restricted Payments; Certain Payments of Indebtedness; Synthetic Purchase Agreements. (a) The Parent Borrower will not, nor will it permit any Cargill 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 Parent Borrower may declare and pay dividends with respect to its capital stock payable solely in additional shares of its common stock, (ii) Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) the Parent Borrower may make Restricted Payments, not exceeding $5,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Parent Borrower and its Subsidiaries, (iv) repurchases of capital stock of the Parent Borrower deemed to occur upon the exercise of stock options if such capital stock represents a portion of the exercise price thereof and repurchase of capital stock deemed to occur upon the withholding of a portion of the capital stock issued, granted or awarded to an employee or director to pay for the taxes payable by such employee or director upon such issuance, grant or award, (v) if (A) in the case of a dividend, at the time declared no Event of Default has occurred and is continuing, (B) in the case of any other Restricted Payment, at the time made and after giving effect thereto no Default has occurred and is continuing and (C) in the case of each Restricted Payment, immediately after giving effect to any payment thereof there shall be an aggregate of at least $100,000,000 of unutilized Revolving Commitments and Permitted Investments, the Parent Borrower may make Restricted Payments in cash in an amount that will not result in the cumulative amount of all such Restricted Payments permitted by this clause (v) made after the Effective Date (after giving effect to Restricted Payments consisting of dividends declared and not yet paid) exceeding the sum of $20,000,000 plus 25% of the sum of Consolidated Net Income for each fiscal year (if any) ended on or after May 31, 2006, and prior to the date of such Restricted Payment (or the declaration thereof, in the case of a dividend) for which financial statements are available plus 25% of the Net Proceeds received by or on behalf of the Parent Borrower after the Effective Date in respect of offerings by the Parent Borrower of Equity Interests in compliance with the terms of this Agreement (other than (A) in respect of offerings by the Parent Borrower to any Subsidiary and (B) to the extent any such Net Proceeds are applied pursuant to any provision of this Agreement that allows funds to be applied for a particular purpose based upon Net Proceeds of Equity Interests issued by the Parent Borrower), (vi) if at the time declared no Event of Default has occurred and is continuing, the Parent Borrower may declare and pay dividends with respect to its preferred stock and other preferred Equity Interests issued in accordance with Section 6.01(b) in an amount that will not result in the cumulative amount of all such dividends permitted by this clause (viv) paid during any fiscal year the term of the Parent Borrower this Agreement exceeding $20,000,0003,000,000, and (viivi) any Cargill Subsidiary may purchase or redeem any portion of its Equity Interests, provided that, following any such purchase or redemption, such Cargill Subsidiary is a direct or indirect wholly owned Subsidiary of the Parent Borrower.
(b) The Parent Borrower will not, nor will it permit any Cargill Subsidiary to, make or agree to pay or make, directly or indirectly, any voluntary or optional 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 voluntary or optional 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, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under this Agreement;
(ii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iii) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;; and
(iv) prepayment of Indebtedness outstanding under the Existing Loan Agreements on the Effective Date;
(v) payments of Indebtedness owing to a Loan Party; and.
(vic) payments made to prepayThe Borrower will not, repurchase nor will it permit any Cargill Subsidiary to, enter into or redeem Junior Debt Securities; provided that be party to, or make any such payment shall be permitted under this clause (vi) only if (A) either (1) such payment is made with the Net Proceeds of either Equity Interests issued by the Parent Borrower in compliance with this Agreement or Permitted Refinancing Securitiesunder, in either case within 60 days after receipt of such Net Proceeds (and, if not so applied on the date of receipt of such Net Proceeds, such Net Proceeds shall be deposited and held in a restricted account, established on terms and pursuant to procedures reasonably satisfactory to the Administrative Agent, for the purpose of making such payment) or (2) at the time of and after giving effect to such payment, the Leverage Ratio is less than 2.5 to 1.0 and the total Revolving Commitments exceeds the sum of the total Revolving Exposures and the Local Currency Loan Exposure by at least $200,000,000,any Synthetic Purchase Agreement.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness; Synthetic Purchase Agreements. (a) The Parent Borrower Company will not, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur 118 any obligation (contingent or otherwise) to do so, except (i) the Parent Borrower Company may declare and pay dividends with respect to its capital stock payable solely in additional shares of its common stock, (ii) Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) the Parent Borrower Company may make Restricted Payments, not exceeding $5,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Parent Borrower Company and its Subsidiaries, (iv) PLP may make distributions of distributable cash as required under the PLP Partnership Agreement, (v) repurchases of capital stock of the Parent Borrower Company deemed to occur upon the exercise of stock options if such capital stock represents a portion of the exercise price thereof and repurchase of capital stock deemed to occur upon the withholding of a portion of the capital stock issued, granted or awarded to an employee or director to pay for the taxes payable by such employee or director upon such issuance, grant or award, (vvi) Permitted PLP Purchases, (vii) if (A) in the case of a dividend, at the time declared no Event of Default has occurred and is continuing, continuing and (B) in the case of any other Restricted Payment, at the time made and after giving effect thereto no Default has occurred and is continuing and (C) in the case of each Restricted Payment, immediately after giving effect to any payment thereof there shall be an aggregate of at least $100,000,000 50,000,000 of unutilized Revolving Commitments and Permitted Investments, the Parent Borrower Company may make Restricted Payments in cash declare and pay dividends with respect to its common stock in an amount that will not result in the cumulative amount of all such Restricted Payments dividends permitted by this clause (vvii) made paid after the Effective Date (after giving effect to Restricted Payments consisting of dividends declared and not yet paid) exceeding the sum of $20,000,000 plus 25% of the sum of Consolidated Net Income for each fiscal year (if any) ended on or after May December 31, 20062001, and prior to the date of declaration of such Restricted Payment (or the declaration thereof, in the case of a dividend) dividend for which financial statements are available plus 25% of the Net Proceeds received by or on behalf of the Parent Borrower after the Effective Date in respect of offerings by the Parent Borrower of Equity Interests in compliance with the terms of this Agreement (other than (A) in respect of offerings by the Parent Borrower to any Subsidiary and (B) to the extent any such Net Proceeds are applied pursuant to any provision of this Agreement that allows funds to be applied for a particular purpose based upon Net Proceeds of Equity Interests issued by the Parent Borrower)available, (viviii) if at the time declared no Event of Default has occurred and is continuing, the Parent Borrower Company may declare and pay dividends with respect to its preferred stock and other preferred Equity Interests issued in accordance with Section 6.01(b) in an amount that will not result in the cumulative amount of all such dividends permitted by this clause (viviii) paid during any fiscal year of the Parent Borrower Company exceeding $20,000,000, and (viiix) any Subsidiary may purchase or redeem any portion of its Equity Interests, provided PROVIDED that, following any such purchase or redemption, such Subsidiary is a direct or indirect wholly owned Subsidiary of the Parent BorrowerCompany.
(b) The Parent Borrower Company will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any voluntary or optional payment or other distribution (whether in cash, securities or other 119 property) of or in respect of principal of or interest on any Indebtedness, or any voluntary or optional 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, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under this Agreement;
(ii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iii) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(iv) prepayment of Indebtedness outstanding under payments made to purchase 6.625% Notes pursuant to the Existing Loan Agreements on the Effective Date6.625% Notes Tender Offer;
(v) payments of Indebtedness owing to a Loan Party; and
(vi) after the Salt Disposition is consummated, payments made to prepay, repurchase or redeem Junior Debt Securitiesthe 7.4% Notes or other Indebtedness of the Company referred to in the definition of the term "Salt Disposition Escrow"; provided PROVIDED that any such payment payments shall be permitted under this clause (v) only to the extent of the funds available therefor on deposit in the Salt Disposition Escrow;
(vi) if the Polk County IRBs are refinanced prior to being repaid, payments made to prepay, repurchase or redeem other Indebtedness of the Company referred to in the definition of the term "Polk Escrow"; PROVIDED that payments shall be permitted under this clause (vi) only if to the extent of funds available therefor on deposit in the Polk Escrow;
(vii) payments made to purchase Polk County IRBs prior to the refinancing, redemption or repayment thereof, as contemplated by and in accordance with Section 5.15;
(viii) payments made to terminate the Argus Lease or to directly or indirectly acquire an undivided interest in the Argus Lease or in the facilities that are the subject of the Argus Lease in the manner contemplated in the definition of the term 120 "Net Proceeds" as well as any other payments made in respect of such termination or any such acquisition;
(ix) prepayment of Indebtedness outstanding under the Existing Credit Agreements on the Effective Date;
(x) payments of Indebtedness owing to a Loan Party;
(xi) after the Salt Disposition is consummated, payments made to prepay, repurchase or redeem the Company's 6.50% Notes due 2003, 10.75% Notes due 2003, 6.55% Notes due 2005 or 7.625% Notes due 2005 (or any combination thereof) then outstanding; PROVIDED that payments shall be permitted under this clause (xi) only to the extent of funds available therefor on deposit in the Excess Salt Disposition Escrow;
(xii) in addition to payments permitted by clause (xi) of paragraph (b) of this Section 6.08, any other payments made to purchase or redeem the 6.50% Notes due 2003; and
(xiii) payments made to prepay, repurchase or redeem the 2005 Senior Notes; PROVIDED that payments shall be permitted under this clause (xiii) only to the extent (A) either of any Net Proceeds from the issuance by the Company of any common stock or preferred stock or other preferred Equity Interests issued in accordance with Section 6.01(b) and (B) that, in respect of any such payment made during fiscal year 2003, the Agents shall have received a certificate dated the date of such payment, and signed on behalf of the Company by the President, a Vice President or a Financial Officer of the Company representing that (1) such payment is made with the Net Proceeds of either Equity Interests issued by the Parent Borrower in compliance with this Agreement or Permitted Refinancing Securities, in either case within 60 days after receipt of such Net Proceeds (and, if not so applied on the date of receipt of such Net Proceeds, such Net Proceeds shall be deposited and held in a restricted account, established on terms and pursuant to procedures reasonably satisfactory to the Administrative Agent, for the purpose of making such payment) or (2) at the time of and immediately after giving effect to such payment, the Leverage Ratio is less than 2.5 to 1.0 and the total Revolving Commitments exceeds the sum there shall be an aggregate of the total Revolving Exposures and the Local Currency Loan Exposure by at least $200,000,000,130,000,000 of unutilized Revolving Commitments and Permitted Investments, (2) the Company reasonably expects as of the date of such certificate that there shall be an aggregate of at least $130,000,000 of unutilized Revolving Commitments and Permitted Investments throughout the remainder of fiscal year 2003 and (3) the Company reasonably expects as of the date of such certificate that Consolidated EBITDA for the fiscal year ending December 31, 2003 shall be at least $315,000,000 for the fiscal year ending December 31, 2003. 121
(c) The Company will not, nor will it permit any Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement, except (i) the Existing Synthetic Purchase Agreement and payments thereunder and (ii) any Synthetic Purchase Agreement entered into by the Company with respect to Indebtedness of the Company (other than Loans) and payments thereunder provided that the optional prepayment or redemption of such Indebtedness would be permitted under paragraph (b) of this Section at the time such Synthetic Purchase Agreement is entered into (other than pursuant to a refinancing). The Company shall promptly deliver to the Agents a copy of any Synthetic Purchase Agreement to which it becomes party.
Appears in 1 contract
Samples: Credit Agreement (Imc Global Inc)
