Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries to, declare or make any Restricted Payment, except: (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests; (ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith; (iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09; (iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133 (v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year; (vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests; (vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions; (viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes; (ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134 (x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year. (b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except: (i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01; (ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests); (iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants; (iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135 (v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and (vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement; (vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and (viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Other than the payment for Shares in the Merger (including Shares with respect to which appraisal rights shall be exercised) and payments in connection with the modification of existing options and common-stock-equivalents at the time of the Merger, Holdings, the Borrower and, prior to the Merger, Acqco will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
except (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries Holdings may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its capital stock payable solely in additional shares of its Equity Interests common stock or options, warrants or other rights to purchase common stock, (ii) the Subsidiaries (other than the Borrower) may declare and pay dividends ratably according to their interests) and, solely with respect to Subsidiaries organized in Germanytheir capital stock, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) Holdings or, prior to the extent constituting Restricted PaymentsMerger, Acqco may make payments to officers, employees and directors of Holdings and the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly (or to the respective estate or permitted by Sections 6.03transferee under such plans or agreements of any such officer, 6.04, 6.05 employee or 6.09;
(ivdirector) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise cancellation or repurchase of common stock (or options to purchase common stock) previously issued to such officers, employees and directors pursuant to and in accordance with stock option plans or warrants other benefit plans or compensation agreements (or agreements entered into in connection therewith) entered into in the ordinary course of business for officers, employees and directors of Holdings and the Subsidiaries, either in the form of cash paid to repurchase such common stock or cash paid with respect to Indebtedness previously issued as permitted by Section 6.01(a)(xi) to repurchase such common stock, provided that all payments pursuant to this clause (iii) do not exceed $1,000,000 during any fiscal year and $5,000,000 in the aggregate during the term of this Agreement, (iv) the Borrower may pay dividends to Holdings at such times and in such amounts, not exceeding $1,000,000 during any fiscal year, as shall be necessary to permit Holdings to discharge liabilities of Holdings and its Subsidiaries otherwise permitted to be discharged under this Agreement, (v) if the Subordinated Notes are issued by the Borrower after the 8% PIK Debentures Issuance Date, the Borrower may pay a dividend to Holdings from the proceeds of the issuance of only whole shares the Subordinated Notes in an amount sufficient to permit Holdings to redeem the 8% PIK Debentures for an amount equal to the principal amount thereof plus accrued but unpaid interest thereon, (vi) if the Subordinated Notes are not issued by the Borrower after the issuance of Equity Interests; CREDIT AGREEMENTthe 8% PIK Debentures Issuance Date, Page 133
(v) the Parent Borrower may pay a dividend to Holdings in an amount sufficient to permit Holdings to redeem the 8% PIK Debentures for an amount equal to the repurchaseprincipal amount thereof plus accrued but unpaid interest thereon, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) no such dividend or dividends shall be made at the any time when a Default or Event of any such repurchase, retirement or other acquisition or retirement for value no Default exists has occurred and is continuing (or would resultresult from the making of such dividend) or on any date prior to May 23, 1999, (B) the aggregate Leverage Ratio shall be less than 2.50 to 1.00 as of the end of the four-fiscal-quarter period most recently ended immediately prior to the payment of any such dividend or dividends and (C) the amount of Restricted Payments made under this clause (v) such dividend or dividends in any fiscal year does of Holdings shall not exceed the lesser of (x) $10,000,000 (25% of Excess Cash Flow from the “Yearly Limit”) plus immediately preceding fiscal year to the extent not previously used for another permitted purpose under this Agreement and (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year$5,000,000, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent the Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted other Subsidiaries may make Restricted Payments to Holdings in an order to pay Taxes, (viii) so long as that no Default or Event of Default has occurred and is continuing (or would result therefrom), the Borrower and the other Subsidiaries may make Restricted Payments to the extent that the proceeds thereof are promptly used to satisfy liabilities relating to the Disclosed Matters (including legal and other expenses relating thereto), provided that such Restricted Payments shall not exceed $5,000,000 in any fiscal year of Holdings and $10,000,000 in the aggregate amount that, together with during the term of this Agreement and (ix) the Borrower and the other Subsidiaries may make Restricted Payments to Holdings in order for Holdings (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries to satisfy obligations incurred pursuant to this Section 6.08(a)(ixtransactions permitted under Sections 6.09(d), (e), (f) after the date hereofor (g), (B) the aggregate amount to pay Transaction Costs up to $10,000,000, consisting of all Investments made by the Parent Borrower transaction advisory fees, fees to Cypress and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof Affiliates, consulting fees and other miscellaneous fees and expenses and (C) to redeem the aggregate amount of all payments or distributions made by Senior Notes and the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearConvertible Subordinated Notes.
(b) Such Holdings, the Borrower and, prior to the Merger, Acqco will not, nor and will it not permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding payment of Restricted Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) (A) payments the redemption or other distributions on account repurchase of the purchase, redemption, retirement, acquisition, cancellation or termination Convertible Subordinated Notes pursuant to the terms of Restricted Indebtedness, in each case in exchange for, or out of this Agreement and the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)Convertible Subordinated Notes Indenture;
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments the redemption or other distributions on account repurchase of the purchase, redemption, retirement, acquisition, cancellation Senior Notes pursuant to the terms of this Agreement and the Senior Notes Indenture or termination of Restricted Indebtedness, in an aggregate amount that, together with the Debt Tender Offer;
(Avi) the aggregate redemption of the 8% PIK Debentures by Holdings for a redemption price equal to the outstanding principal amount thereof plus accrued but unpaid interest thereon with the proceeds of all other such payments or other distributions made a dividend paid by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix6.08(a)(v) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such noticevi); and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making prepayment of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, Existing Mortgage to the extent that the Borrower and Holdings are not prohibited by able to obtain a waiver of any defaults that occur under such Existing Mortgage as a result of the subordination provisions thereof (if applicable)Transactions.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The None of Holdings, the Parent Borrower, any Subsidiary Term Borrower will notor any Foreign Subsidiary Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make 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) such Person Holdings may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares Equity Interests of its Equity InterestsHoldings;
(ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithcapital stock;
(iii) the Parent Borrower may make payments to the extent constituting Holdings to permit it to make, and Holdings may make, Restricted Payments, not exceeding $2,000,000 during any fiscal year (provided that such amount shall be increased, in respect of the fiscal year ending on December 31, 2002, and each fiscal year thereafter by an amount equal to the total unused amount of such Restricted Payments for the immediately preceding fiscal year (without giving effect to the amount of any unused amounts that were carried forward to such preceding fiscal year) not to exceed in the aggregate $16,000,000), 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 its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09the Subsidiaries;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that dividends to Holdings at such times and in such amounts (A) as shall be necessary to enable Holdings to make payments permitted by Section 6.08(a) (v) and (vi) and (B) as shall be necessary to permit Holdings to discharge its other permitted liabilities;
(v) Holdings may pay Holdings Preferred Dividends and interest in respect of the Shareholder Loans and its other Indebtedness permitted hereunder, provided that, at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Event of Default shall exist or would result therefrom as of have occurred and be continuing and Holdings and the date of declaration of such Restricted Payment Parent Borrower are in compliance with Sections 6.13 and such Restricted Payment is made within 60 days of such declaration and 6.14;
(Bvi) if Holdings may make payments to the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or extent contemplated by the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00Recapitalization Agreement, then the aggregate amount of Restricted Payments made under this clause (x) including payments in respect of a fiscal year (including the restricted stock granted pursuant to the Restricted Payment Stock Obligation, provided that, at the time of such payment in question) shall not at any time exceed 25% respect of the Consolidated Net Income Restricted Stock Obligation and after giving effect thereto, no Event of Default shall have occurred and be continuing;
(vii) Holdings may pay the Saturn Proceeds Distribution;
(viii) Parent Borrower may make payments to Holdings to permit it to make, and Holdings may make payments permitted by Sections 6.09(f), (g), (h) and (i); provided that, at the time of such payment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and Holdings and the Parent Borrower are in compliance with Sections 6.13 and its Restricted Subsidiaries for 6.14; provided, further, that any payments that are prohibited because of the immediately preceding fiscal yearproviso shall accrue and may be made as so accrued upon the curing or waiver of such Default, Event of Default or noncompliance; and
(ix) the Intercompany Transfer.
(b) Such None of Holdings, the Parent Borrower, any Subsidiary Term Borrower will notor any Foreign Subsidiary Borrower will, nor will it they permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) the repurchase, refinancingsredemption, amendmentsrepayment or other retirement of the Convertible Debentures as permitted by Sections 5.15 and 6.12;
(iii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the subordinated Indebtedness prohibited by the subordination provisions thereof;
(iv) refinancings of Indebtedness to the extent permitted by Section 6.01;; and
(iiv) (A) payments or other distributions on account payment of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or secured Indebtedness out of the net proceeds of, the substantially concurrent of any sale of Equity Interests (other than Disqualified Equity Interests) or transfer of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);Indebtedness.
(iiic) payments or other distributions on account None of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect theretoHoldings, the Parent Borrower is or any Foreign Subsidiary Borrower 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 compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account case of the purchase, redemption, retirement, acquisition, cancellation or termination any Synthetic Purchase Agreement related to any Equity Interest of Restricted Indebtedness if, on a Pro Forma BasisHoldings, the Secured Leverage Ratio is less than 4.00 payments required to 1.00; CREDIT AGREEMENTbe made by Holdings are limited to amounts permitted to be paid under Section 6.08(a), Page 135
(vii) payments or other distributions on account in the case of the purchase, redemption, retirement, acquisition, cancellation or termination of any Synthetic Purchase Agreement related to any Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions required to be made by Holdings, the Parent Borrower and its Restricted or the Subsidiaries pursuant thereunder are limited to this the amount permitted under Section 6.08(b)(v6.08(b) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (Ciii) in the aggregate amount case of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this any Synthetic Purchase Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making obligations of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubtHoldings, the Parent Borrower and its Restricted the Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, thereunder are subordinated to the extent not prohibited by Obligations on terms satisfactory to the subordination provisions thereof (if applicable)Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Mascotech Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrower may declare and pay dividends with respect to its common stock payable solely in additional shares of its common stock, and, with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stockreserved,
(ii) Subsidiaries (including JV Entities) may declare and pay dividends ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in GermanyJV Entities, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;applicable JV Entity Documents),
(iii) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the extent constituting Restricted Payments, the Parent Borrower and its Subsidiaries in an aggregate amount, together with the Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03Payments made pursuant to Section 6.08(a)(iv) and (vi), 6.04, 6.05 or 6.09;not to exceed $[REDACTED] in any fiscal yearreserved,
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests open market purchases for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for not greater than fair market value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any futurefrom unrelated third parties, present or former directorwhich Equity Interests are immediately cancelled upon repurchase in an aggregate amount, officer, member of management, employee or consultant of together with the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause pursuant to Section 6.08(a)(iii) and (vi), not to exceed $[REDACTED] in any fiscal yearreserved,
(v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal yearpurchase, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale redemption or acquisition of Equity Interests pursuant to directorsthe Option to Purchase Stock dated as of December 1, officers2014 by and among CRH Delaware, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;[REDACTED] and [REDACTED] and
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower BorrowerHoldings and its Subsidiaries CRH Canada may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement additional dividends and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments distributions in an aggregate amount thatamount, together with (A) the aggregate amount of all other Restricted Payments made by pursuant to Section 6.08(a)(iii) and (iv), not to exceed $[REDACTED] in any fiscal year; provided that the Parent Borrower may make such dividends and its Restricted Subsidiaries distributions pursuant to this Section 6.08(a)(ix6.08(vi) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) only so long as of the date of any such Restricted Payment both before and after giving effect thereto to payment of such dividend or distribution, (wx) no Default shall exist or Event of Default has occurred and is continuing or would occur as a result therefrom or thereof, (x) Liquidity shall not be less than $[REDACTED], (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratioy) the Borrowers are in pro forma compliance with the Fixed Charge Coverage Ratio on a Pro Forma Basis is set forth in Section 6.12(a) hereof (calculated based upon the most recent Compliance Certificate received by the Administrative Agent) of the Borrower for the four consecutive fiscal quarters most recently ended will not be greater than 4.50 2.75 to 1.00 or and (z) the Secured Leverage Ratio on Borrower Representative has delivered to the Administrative Agent a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearcertificate evidencing such calculation.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of any interest, refinancingsprincipal or other obligations under or in respect of any Indebtedness permitted under Section 6.01, amendmentssubject, supplementsin each such case, modifications, extensions, renewals, restatements to each applicable subordination or refunding intercreditor agreement with the Administrative Agent and to Section 6.13;
(iii) refinancings of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;and
(iv) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account transfer of the purchase, redemption, retirement, acquisition, cancellation property or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) assets securing such Indebtedness to the aggregate amount of all other extent such payments sale or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness transfer is permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Section 6.05.
Appears in 1 contract
Samples: Credit Agreement (CRH Medical Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person may declare each of Holdings and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrower may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrowerits common stock, such dividends must be made to the holders payable solely in additional shares of its Equity Interests ratably according to their interests) andcommon stock, solely and Holdings may declare and pay dividends with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock, (ii) Subsidiaries organized in Germanymay declare and pay dividends ratably with respect to their capital stock, (iii) the Borrower may make other Restricted Payments to Holdings to permit Holdings to make payments pursuant to and in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning stock option plans or other benefit plans for management or employees of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted PaymentsHoldings, the Parent Borrower and its Restricted the Subsidiaries may enter into transactions expressly permitted by Sections 6.03in an aggregate amount not to exceed $7,500,000 during any fiscal year, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower Holdings may (A) redeem the Qualified Preferred Stock pursuant to a conversion into common stock of partial interests in its Equity Interests for nominal amounts which are required to be repurchased Holdings and (B) make any Restricted Payments in connection with such conversion, in each case, in accordance with the exercise terms of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
Qualified Preferred Stock (v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that make Restricted Payments to Holdings at such times and in such amounts (A) at not exceeding $3,000,000 during any fiscal year, as shall be necessary to permit Holdings to discharge its corporate overhead (including franchise taxes and directors fees) and other permitted liabilities and to make payments permitted by Section 6.09 and (B) as shall be necessary to pay any taxes that are due and payable by Holdings as part of a consolidated group that includes the time Borrower, to the extent that such taxes relate to the operations of any such the Borrower and the Subsidiaries, (vi) so long as no Default shall have occurred and be continuing or would result therefrom, Holdings may repurchase, retirement redeem or retire its outstanding Equity Interests or make other acquisition Restricted Payments (and the Borrower may make Restricted Payments the proceeds of which are to be used by Holdings to effect such repurchases, redemptions or retirement retirements or to redeem or repurchase Existing Senior Subordinated Notes or Senior Subordinated Notes) in an aggregate amount not to exceed (A) in the event the Net Leverage Ratio on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for value no Default exists which financial statements are available is greater than or would resultequal to 2.00 to 1.00, (Bx) $10,000,000 minus (y) the aggregate amount of Restricted Payments and payments relating to the Subordinated Debt previously made under pursuant to this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof), (B) in the aggregate amount of all Investments made by event the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Net Leverage Ratio on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available is less than 2.00 to 1.00 and greater than 4.50 or equal to 1.00 or 1.50 to 1.00, (x) $25,000,000 minus (y) the Secured aggregate amount of Restricted Payments and payments relating to the Subordinated Debt previously made pursuant to this clause (vi) and (C) in the event the Net Leverage Ratio on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available is greater less than 3.00 1.50 to 1.00, then (x) $40,000,000 minus (y) the aggregate amount of Restricted Payments and payments relating to the Subordinated Debt previously made under pursuant to this clause (xvi) and (vii) so long as no Default shall have occurred and be continuing or would result therefrom, Holdings may make Restricted Payments (and the Borrower may make Restricted Payments the proceeds of which are used by Holdings to make such payments) in respect of a fiscal year (including the Restricted Payment in question) shall an aggregate amount not at to exceed $2,000,000 during any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Neither Holdings nor the Borrower will notwill, nor will it they permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 cancelation or termination of any Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements other than payments in respect of the Subordinated Debt or refunding the Subordinated Promissory Note prohibited by the subordination provisions thereof;
(iii) refinancings of Restricted Indebtedness to the extent permitted by Section 6.01;
(iiiv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) [intentionally omitted]
(xx) xxxxxxxxxx, xxxxxxxxxx and retirement of Subordinated Debt (including any premium (if any) and accrued and unpaid interest thereon to the date of such redemption, repurchase or retirement) with the Net Proceeds of any issuance of Equity Interests of Holdings during the period of four consecutive fiscal quarters ended immediately prior to the date of such redemption, repurchase or retirement (to the extent not previously applied to repurchase Subordinated Debt, to make Permitted Acquisitions, to make Capital Expenditures or to make investments under Section 6.04 (m)); and
(vii) redemption, repurchase and retirement of Subordinated Debt (including any premium (if any) and accrued and unpaid interest thereon to the date of such redemption or repurchase), at any time during any fiscal year in an aggregate amount equal to (A) $25,000,000, plus (B) Retained Excess Cash Flow for the previous fiscal year (to the extent such Retained Excess Cash Flow has not been applied previously to make Permitted Acquisitions, to repurchase Subordinated Debt or to make Capital Expenditures) plus (C) the amount of payments permitted to be made under Section 6.08(a)(vi).
(c) If, as a result of the receipt of any Net Proceeds by the Borrower or any Subsidiary in connection with any sale, transfer or other distributions on account disposition pursuant to Section 6.05(c) or (g), the Borrower would be required by the terms of the purchaseSenior Subordinated Debt Documents or the terms of any Additional Senior Subordinated Notes to redeem or repurchase (or to make an offer to redeem or repurchase) any Existing Senior Subordinated Notes, redemptionSenior Subordinated Notes or Additional Senior Subordinated Notes, retirementthen the Borrower shall, acquisitionor shall cause one or more of its Subsidiaries to, cancellation (i) prepay Term Loans in accordance with Section 2.11 as if such sale, transfer or termination of Restricted Indebtednessdisposition constituted a “Prepayment Event” or (ii) acquire real property, equipment or other tangible assets, in each case in exchange fora manner that will eliminate any requirement to redeem or repurchase (or to make an offer to redeem or repurchase) such Existing Senior Subordinated Notes, Senior Subordinated Notes and Additional Senior Subordinated Notes. Any such prepayment or out of acquisition pursuant to this clause (c) shall be made prior to the net proceeds offirst day on which the Borrower would be required to redeem or repurchase (or commence an offer to redeem or repurchase) Existing Senior Subordinated Notes, Senior Subordinated Notes or Additional Senior Subordinated Notes under the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of Senior Subordinated Debt Documents or the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time terms of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Additional Senior Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption noticeNotes, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Loan Party to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (icontingent or otherwise) such Person may declare to do so, except (a) the Borrower and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries Parent may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interestscommon stock, (b) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning so long as no Default or Event of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would resultarise as a result thereof, subject to Section 6.12(b), Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries; provided, that, with respect to each of clauses (a) – (c) above, such Person and the Persons holding its Equity Interests are in compliance with Section 7-80-606 of the Colorado Revised Statutes, and (d) so long as no Default or Event of Default exists or would arise as a result thereof, the Borrower may pay cash dividends to the Parent in an amount sufficient to allow the Parent to pay (i) reasonable audit and other accounting expenses incurred in the ordinary course of business, (ii) Taxes due and payable by the Parent to any taxing authority and reasonable expenses incurred in connection with preparation of related Tax returns and filings, (iii) reasonable and necessary expenses (including professional fees and expenses) incurred by the Parent in connection with (A) registration, public offerings and exchange listing of equity securities and maintenance of the same, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal yearcompliance with reporting obligations under, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount thatcompliance with, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereoffederal or state securities laws, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount indemnification and reimbursement of all payments or distributions made by the Parent Borrower directors, officers and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) employees in respect of a fiscal year (including the Restricted Payment liabilities relating to their serving in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will notsuch capacity, nor will it permit any of its Restricted Subsidiaries to, make any payment or obligations in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes director and officer insurance (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”premiums therefor), or any and (iv) other payment or other distribution reasonable expenses incurred by Parent in the ordinary course of business (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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness subject to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests6(h) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicableGuaranty).
Appears in 1 contract
Samples: Credit Agreement (Natural Grocers by Vitamin Cottage, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower Loan Parties will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except that (i) such Person Parent may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
Interests (other than Disqualified Stock), (ii) Restricted Subsidiaries any Subsidiary may declare and pay dividends or make other distributions with respect to their its capital stock, partnership or membership interests or other similar Equity Interests (provided that if such Interests, or make other Restricted Subsidiary is not wholly-owned by the Parent BorrowerPayments in respect of its Equity Interests, such dividends must be made in each case ratably to the holders of its such Equity Interests ratably according (or, if not ratably, on a basis more favorable to their interests) andParent and the Subsidiaries), solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) the Parent and its Subsidiaries may make Restricted Payments to the extent constituting Restricted Paymentsprovided for in the Approved Budget (including Permitted Variances thereto), the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by [reserved], (v) the Parent Borrower may make cash payments in lieu of partial the issuance of fractional shares representing insignificant interests in its Equity Interests for nominal amounts which are required to be repurchased the Parent in connection with the exercise of stock warrants, options or warrants to permit the issuance of only whole other securities convertible into or exchangeable for shares of Equity Interests; CREDIT AGREEMENTcommon stock in the Parent, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests Loan Parties may make Restricted Payments to Borrower Representative on or around and upon the execution and effectiveness of the Parent Borrower that occurs upon RSA to pay fees and expenses in accordance therewith to the cashless exercise of stock optionsextent permitted in the applicable Orders, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such to the extent constituting a Restricted Payment, the Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated consummate transactions permitted by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement Section 6.05; and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries Loan Parties may make Restricted Payments to permit payment of franchise and similar taxes, administrative and maintenance expenses, and foreign independent director (or foreign independent member or manager) fees and expenses and related expenses, in an aggregate amount thateach case, together with (A) of certain non-Debtor affiliate entities to the aggregate amount of all other Restricted Payments made extent provided in the “first day” orders on a final basis entered by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) Court in respect of a fiscal year ongoing cash management in the ordinary course of business consistent with past practice and to the extent provided for in the Approved Budget (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearPermitted Variances thereto).
(b) Such Borrower Parent will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, make or agree to pay or make, directly or indirectly, any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other payment or other distribution (whether in cash, securities or other property), ) of or in respect any Specified Indebtedness (including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted Specified Indebtedness), or any payment or other distribution (whether in cash, securities or other property), except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements payments or refunding other distributions in respect of Restricted any Specified Indebtedness to the extent provided for in the Approved Budget (including Permitted Variances thereto) and/or permitted by Section 6.01the applicable Orders;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)[reserved];
(iii) payments or other distributions on account to the extent not subject to any mandatory prepayment of the purchaseLoans or reinvestment required pursuant to the mandatory prepayment provisions and/or reinvestment provisions of Section 2.11(c), redemption, retirement, acquisition, cancellation payment of secured Specified Indebtedness that becomes due as a result of (A) any voluntary sale or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time transfer of any assets (other than assets included in any Borrowing Base) securing such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom Indebtedness or (2B) no Default shall exist any casualty or would result therefrom on the date condemnation proceeding (including a disposition in lieu thereof) of any assets (other than assets included in any Borrowing Base) securing such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial CovenantsIndebtedness;
(iv) payments of or other distributions on account in respect of Specified Indebtedness solely by issuance of the purchase, redemption, retirement, acquisition, cancellation or termination common stock of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135Parent;
(v) payments of or other distributions on account in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made Specified Indebtedness incurred by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall any Subsidiary that is not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; anda Debtor;
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement[reserved];
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement[reserved]; and
(viii) other payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, distributions to the extent not prohibited provided for in the Approved Budget (including Permitted Variances thereto) and/or permitted by the subordination provisions thereof (if applicable)applicable Orders.
Appears in 1 contract
Samples: Senior Secured Super Priority Debtor in Possession Credit Agreement (Tailored Brands Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent None of BC Holdings or the BC Borrower will notwill, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries may declare and pay dividends or make distributions ratably with respect to their Equity Interests capital stock or membership interests, (provided that if ii) the BC 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 BC Borrower and the Subsidiaries, (iii) the BC Borrower may make distributions to BC Holdings at such Restricted Subsidiary is times and in such amounts, not wholly-owned by the Parent Borrowerexceeding $5,000,000 during any fiscal year, such dividends must as shall be made necessary to the holders of permit BC Holdings to discharge its permitted liabilities, (iv) BC Holdings may redeem its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, and may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) distributions to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries FPH so that FPH may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value make such redemptions of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any futureFPH, present or in each case from former director, officer, member members of management, employee former employees, or consultant former directors of Loan Parties, and the Parent BC Borrower may make distributions to BC Holdings as necessary to fund such redemptions, provided that the aggregate amount applied for all such purposes shall not exceed $3,000,000 during any fiscal year, (v) BC Holdings and the BC Borrower may pay (by distribution or otherwise) management fees to Madison Dearborn of up to $1,000,000 in the aggregate in any fiscal year, (vi) distributions by the BC Borrower to BC Holdings to pay directors’ out-of-pocket expenses and indemnification obligations owing to directors, (vii) the BC Borrower may make distributions to BC Holdings, and BC Holdings may in turn make distributions to FPH, (A) not exceeding $500,000 in the aggregate during any fiscal year, at such times as shall be necessary to permit FPH to discharge its corporate maintenance obligations and (B) not exceeding $500,000 in the aggregate during any fiscal year, at such times as shall be necessary to permit FPH to discharge its obligations related to its portion of its Subsidiaries (common expenses shared with BC Holdings or the estateBC Borrower, heirs(viii) for so long as BC Holdings is a pass-through or disregarded entity for United States Federal income tax purposes, family membersthe BC Borrower may make distributions to BC Holdings, spouseand BC Holdings shall in turn be permitted, former spouseto make Tax Distributions in respect of any taxable year of BC Holdings equal to the product of (A) the amount of taxable income allocated to the Members for such taxable year, domestic partner or former domestic partner less the amount of taxable loss allocated to the Members for all prior taxable years (except to the extent such taxable losses have previously been taken into account under this provision), times (B) the highest aggregate marginal statutory Federal, state and local income tax rate (determined taking into account the deductibility of state and local income taxes for Federal income tax purposes) to which any of the foregoing)direct or indirect Members of BC Holdings who is an individual is subject for such year; and BC Holdings shall be permitted to make such Tax Distributions pursuant to this clause (viii) on a quarterly basis during such taxable year based on the best estimate of the chief financial officer of BC Holdings of the amounts specified in clauses (A) and (B) above; provided that if the aggregate amount of the estimated Tax Distributions made in any taxable year of BC Holdings exceeds the actual maximum amount of Tax Distributions for that year as finally determined, the amount of any Tax Distributions in the succeeding taxable year (or, if necessary, any subsequent taxable years) shall be reduced by the amount of such excess, (ix) after consummation of the Contemplated IPO, the BC Borrower and BC Holdings may declare or make, agree to pay or make, or incur obligations to make, Restricted Payments in cash; provided that (A) the aggregate amount of such Restricted Payments under this clause (ix) (including those made by the Holding Companies, the BC Borrower or the Timber Borrower under clause (xiii) of Section 6.08 of the First Restated Credit Agreement) plus the aggregate amount of cash consideration applied pursuant to clause (vii) of Section 6.08(b) shall not exceed the aggregate Net Proceeds received from the Contemplated IPO and (B) all such Restricted Payments under this clause (ix) must be made within 180 days after the date of consummation of the Contemplated IPO, (x) after consummation of the Contemplated IPO, BC Holdings may declare and pay dividends in cash, and the BC Borrower may make distributions to BC Holdings to fund such dividends; provided that (A) at the time of and after giving effect to any such repurchasedividend, retirement or other acquisition or retirement for value no Default exists or would resultshall have occurred and be continuing, (B) subject to clause (C) below, at the time of and after giving effect to any such dividend, the aggregate amount of Restricted Payments made under dividends paid in reliance upon this clause (vx) in any fiscal year does since the First Restatement Effective Date shall not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds sum of (1) 50% of the Consolidated Net Income accrued during the period (treated as one accounting period) from the sale of Equity Interests Original Effective Date to directors, officers, members of management, employees or consultants the end of the Parent Borrower or most recent fiscal quarter ending prior to the date of its Subsidiaries such dividend for which internal financial statements are available (or or, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus (2) in the estate, heirs, family members, spouse or former spouse of any event of the foregoingoccurrence of a Prepayment Event described in clause (c) of the definition of the term Prepayment Event, an amount equal to 50% of the Net Proceeds from such Prepayment Event and (C) dividends may be paid in reliance upon this clause (x) in an aggregate amount of up to $35,000,000 notwithstanding whether such fiscal year;
dividends would be permitted by clause (viB) the repurchase of Equity Interests above, but any such dividends paid in reliance upon this clause (C) shall be included in determining whether any dividends may be paid in reliance upon clause (B) above and (xi) after consummation of the Parent Contemplated IPO, the BC Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment distributions to BC Holdings, and BC Holdings may in connection with turn make distributions to FPH at such times as shall be necessary to permit FPH to reimburse the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and expenses of Madison Dearborn incurred in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount thatContemplated IPO, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of but any such Restricted Payment and after giving effect thereto no Default distributions shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on be deducted in calculating Net Proceeds from the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearContemplated IPO.
(b) Such Neither BC Holdings nor the BC Borrower will notwill, nor will it the BC Borrower permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 cancelation or termination of any Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of interest and principal payments as and when due in respect of any Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) (A) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness, in each case in exchange for, transfer or out involuntary condemnation of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)Indebtedness;
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments [Intentionally Omitted];
(vi) payment of Indebtedness to the BC Borrower or other distributions on account a Subsidiary; and
(vii) after consummation of the purchaseContemplated IPO, redemption, retirement, acquisition, cancellation the BC Borrower may redeem or termination of Restricted Indebtedness, in an aggregate amount that, together with repurchase Senior Unsecured Debt or Subordinated Debt for cash consideration; provided that (A) the aggregate amount applied for such purposes plus the aggregate amount of all other such payments or other distributions Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this clause (ix) of Section 6.08(b)(v6.08(a) after shall not exceed the date hereofaggregate Net Proceeds received from the Contemplated IPO, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower such redemptions and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall repurchases must be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 180 days after the date of declaration of such dividend, payment or other distribution or giving consummation of the redemption notice, as applicable, will not Contemplated IPO and (C) any Senior Unsecured Debt or Subordinated Debt so redeemed or repurchased shall be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower retired and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)cancelled.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Boise Cascade Holdings, L.L.C.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notOther than as specified in the first sentence of Section 5.11, neither Holdings nor the Borrowers will, nor will it any of them permit any of its Restricted Subsidiaries subsidiaries that is a Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, exceptexcept that:
(i) such Person Holdings and the Subsidiaries may declare and make Restricted Payments pay dividends ratably with respect to its Equity Interests their capital stock payable solely in additional shares of its Equity Intereststheir capital stock;
(ii) Restricted Subsidiaries (other than Intermediate Holdings and HDD Holdings) may declare and pay dividends ratably with respect to their Equity Interests (capital stock, provided that no Subsidiary or Borrower may pay any dividend to Holdings pursuant to this clause (ii) if as a result of the payment or receipt of such Restricted Subsidiary is not wholly-owned by the Parent Borrowerdividend, such dividends must Holdings would be made required to pay any distribution to the holders Investors (or to increase the amount of its Equity Interests ratably according any distribution otherwise payable) pursuant to their interestsclause (vii) andof this Section 6.08 (a);
(iii) Holdings, solely with respect to the Borrowers and the Subsidiaries organized in Germany, may make other payments Restricted Payments, not exceeding $25,000,000 during any fiscal year, pursuant to and in accordance with domination stock option plans or other benefit plans for directors, management or employees of Holdings, the Borrowers and profit the Subsidiaries, including the redemption or purchase of capital stock of Holdings or a Subsidiary held by former directors, management or employees of Holdings, either Borrower or any Subsidiary following termination of their employment;
(iv) the Borrowers may pay dividends to HDD Holdings, HDD Holdings may pay dividends to Intermediate Holdings, and loss pooling agreements Intermediate Holdings may pay dividends to Holdings, in each case at such times and in such amounts, not exceeding $5,000,000 during any fiscal year, as shall be necessary to permit Holdings to discharge its permitted liabilities;
(Beherrschungs – und Ergebnisabführungsverträgev) HDD Holdings and SAN Holdings may make Permitted Liquidity Event Distributions to Intermediate Holdings; Intermediate Holdings, Tape Holdings, Seagate Software and Investment Holdings may make Permitted Liquidity Event Distributions to Holdings, Holdings may 143 136 make Permitted Liquidity Event Distributions to the Investors and HDD Holdings, SAN Holdings and Tape Holdings may make Permitted Liquidity Event Distributions to, or for the account of, participants in their respective Deferred Compensation Plans, provided, in each case, that no Default has occurred and is continuing or would occur as a result of such Permitted Liquidity Event Distributions, provided further that, at least ten days before any Permitted Liquidity Event Distribution is made, Holdings shall deliver to the Administrative Agent a certificate of the chief financial officer of Holdings setting forth in reasonable detail Holdings's calculation of the amount of cash and Publicly Traded Equity Securities to be distributed in such Permitted Liquidity Event Distribution (including, in the case of a distribution of Distributable Liquidity Event Proceeds described in paragraph (b) of the definition of the term Distributable Liquidity Event Proceeds, the calculation of the Historical Investment in the applicable Investment Business or Permitted Spinoff Subsidiary);
(vi) HDD Holdings may declare and pay special distributions to Intermediate Holdings, and Intermediate Holdings may declare and pay special distributions to Holdings, in each case as shall be necessary to permit Holdings to make Restricted Payments described in clause (vii) of this Section 6.08 in respect of tax obligations of the direct and indirect equityholders of Holdings attributable to Intermediate Holdings and its subsidiaries; and
(A) If and for so long as Holdings is treated as a pass-through entity for United States Federal income tax purposes or a controlled foreign corporation for United States Federal income tax purposes, within 30 days after the end of each calendar year, Holdings may declare and pay a dividend for the purpose of providing its equity holders with cash to pay U.S. income taxes attributable to taxable income of Holdings and its subsidiaries for such calendar year attributed to such equity holders ("Tax Distributions"). The maximum amount of Tax Distributions for any calendar year shall be equal to (x)
(1) if Holdings is a pass-through entity for United States Federal income tax purposes, the amount of taxable income of Holdings for such calendar year (for the purposes of the calculation made pursuant to this clause (x)(i), the taxable income of Holdings shall be assumed to be the taxable income Holdings would have had if it were a corporation incorporated in the United 144 137 States, including any "Subpart F income" (within the meaning of Section 291 952 of the German Stock Corporation Act Code) of its subsidiaries that it would be required to include in taxable income if it were such a corporation), reduced by the amount of taxable loss allocated to the equity holders of Holdings for all prior calendar years (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) except to the extent constituting Restricted Paymentssuch taxable losses have previously been taken into account under this clause), the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03or (2) if Holdings is a controlled foreign corporation, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made Holdings's Subpart F income for such calendar year (and, to the extent such Subpart F income would be attributed to the equity holders, the Subpart F income of Holdings's subsidiaries for such calendar year), times (y) 40%.
(B) As a condition to making any Tax Distribution under paragraph (A) above or (D) below, Holdings will deliver to the Administrative Agent at least 30 calendar days prior to the declaration and payment of such Tax Distribution, a notice, certified by the Chief Financial Officer of Holdings, setting forth in detail reasonably satisfactory to the Administrative Agent the basis for the determination of the amount of such Tax Distribution.
(C) If Holdings makes any Tax Distribution pursuant to this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of any taxable income realized on any sale of assets or Equity Interests permitted under Section 6.05 (c) or 6.05 (h), the consideration for which consists of Publicly Traded Equity Securities, such Tax Distribution shall be made in the form of Publicly Traded Equity Securities to the extent that Holdings is legally permitted to do so.
(D) Interim Tax Distributions may be made during each calendar year on or shortly after April 10, June 10, September 10 and December 31 of such year for the purpose of providing the equity holders of Holdings with cash to pay estimated U.S. income taxes attributable to taxable income of Holdings and its subsidiaries for such taxable year, based on good-faith estimates of such estimated tax liability made by Holdings. If any such interim Tax Distributions are made by Holdings during a fiscal taxable year, then within 30 calendar days after the end of such calendar year (including Holdings shall deliver to the Restricted Payment in question) shall not at any time exceed 25% Administrative Agent a determination of the Consolidated Net Income maximum amount of Tax Distributions that may be made for such calendar year under paragraph (A) above; if the Parent Borrower aggregate interim Tax Distributions made for such calendar year exceed such maximum such excess amount shall be applied to reduce all amounts payable pursuant to Sections 6.08(a) (v) and its Restricted Subsidiaries (vii) for the immediately preceding fiscal yearnext calendar year and to the extent not so applied shall be carried forward for application against future amounts payable pursuant to Sections 6.08(a) (v) and (vii).
(b) Such Borrower will notNeither Holdings nor the Borrowers will, nor will it any of them permit any of its Restricted Subsidiaries subsidiaries that is a 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;and
(iv) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchasevoluntary sale or transfer of the property or assets securing such Indebtedness.
(c) Neither Holdings nor the Borrowers will, redemptionnor will any of them permit any of its subsidiaries that is a Subsidiary to, retiremententer into or be party to, acquisitionor make any payment under, cancellation or termination of Restricted Indebtedness ifany Synthetic Purchase Agreement, on a Pro Forma Basisprovided that Holdings, the Secured Leverage Ratio is less than 4.00 Borrowers and the Subsidiaries may enter into Synthetic Purchase Agreements providing for payments to 1.00; CREDIT AGREEMENTcurrent or former directors, Page 135
officers or employees of Holdings, the Borrowers and the Subsidiaries or their heirs or estates (v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtednessand may make such payments), in an aggregate amount thatthe same circumstances and amounts that Holdings, together with (A) the aggregate amount of all other such Borrowers and the Subsidiaries are then permitted to make Restricted Payments pursuant to Section 6.08(a)(iii), and any payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v6.08(c) after during any fiscal year shall be deemed to reduce the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to available during such fiscal year under Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable6.08(a)(iii).
Appears in 1 contract
Samples: Credit Agreement (Veritas Software Technology Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make 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) such Person the Borrower may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity InterestsInterests in the Borrower;
(ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithcapital stock;
(iii) to the extent constituting Borrower may make Restricted Payments, not exceeding $5,000,000 from and after the Parent date hereof, 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 Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09the Subsidiaries;
(iv) repurchases by Parent the Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with may pay the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133Closing Date Dividend;
(v) the Parent Borrower may pay for cash dividends in respect of Qualified Borrower Preferred Stock issued pursuant to clauses (b) and (c) of the definition thereof; provided that such dividends in respect of Qualified Borrower Preferred Stock issued pursuant to clause (c) of the definition thereof may only be made after the fiscal year ending December 31, 2016 and only with Excess Cash Flow not otherwise required to be used to prepay Term Loans pursuant to Section 2.11(d)) (without duplication of amounts used pursuant to Section 6.08(a)(vii) or amounts included in the Available Amount and used pursuant to Sections 6.04(s) or 6.08(b)(vii));
(vi) [reserved];
(vii) the Borrower may make payments in respect of the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any Subsidiary using the portion of its Subsidiaries Excess Cash Flow not subject to mandatory prepayment pursuant to Section 2.11(d) (without duplication of amounts used pursuant to Section 6.08(a)(v) or amounts included in the estate, heirs, family members, spouse, former spouse, domestic partner Available Amount and used pursuant to Sections 6.04(s) or former domestic partner of any of 6.08(b)(vii));
(viii) the foregoing)Borrower may make Restricted Payments; provided that (Ax) if after giving effect to such Restricted Payments (and any Indebtedness incurred in connection therewith (but disregarding the proceeds of any such Indebtedness in calculating Unrestricted Domestic Cash) and any related repayment of Indebtedness), the Net Leverage Ratio at the time of the making such payments (the date of the making of such payments, the “RP Date”) would be (1) less than or equal to 2.25 to 1.00, but greater than 2.00 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments made pursuant to this clause (viii) during the period from the date 12 months prior to the RP Date through (and including) the RP Date (such period, the “RP Period”) shall notwould exceed $40,000,000, (2) less than or equal to 2.75 to 1.00, but greater than 2.25 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments made pursuant to this clause (viii) during the RP Period shall notwould exceed $25,000,000, (3) less than or equal to 3.25 to 1.00 but greater than 2.75 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments made pursuant to this clause (viii) during the RP Period shall notwould exceed $15,000,000 and, (4) less than or equal to 4.00 to 1.00 but greater than 3.25 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments made pursuant to this clause (viii) during the RP Period shall notwould exceed $10,000,000 and (5) greater than 4.00 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments would exceed $5,000,000; provided further that at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under payment pursuant to this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion viii), no Default or Event of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” Default shall have occurred and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxescontinuing;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date respect of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments purchase price adjustment required to be made with under the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134Westfalia Purchase Agreement;
(x) the Parent Borrower may make additional any Restricted Payments; provided that Payments and/or payments or deliveries in shares of common stock (Aor other securities or property following a merger event or other change of the common stock of the Borrower) (xand cash in lieu of fractional shares) as and/or cash required by the terms of, and otherwise perform its obligations under, any Permitted Convertible Indebtedness (including, without limitation, making payments of interest and principal thereon, making payments due upon required repurchase thereof and/or making payments and deliveries due upon conversion thereof);
(xi) the date of Borrower may pay the premium in respect of, and otherwise perform its obligations under, any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or Permitted Bond Hedge Transaction; and
(yxii) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Borrower may make any Restricted Payments made under this clause and/or payments or deliveries required by the terms of, and otherwise perform its obligations under, any Permitted Warrant Transaction (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower including, without limitation, making payments and/or deliveries due upon exercise and its Restricted Subsidiaries for the immediately preceding fiscal yearsettlement or termination thereof).
(b) Such The Borrower will not, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) payment of secured Indebtedness out of the proceeds of any sale or transfer of the property or assets securing such Indebtedness;
(v) payment of or in respect of (A) Indebtedness created under the ABL Loan Documents and (B) Indebtedness or obligations secured by the ABL Security Documents;
(vi) payments or other distributions on account of Indebtedness with the purchase, redemption, retirement, acquisition, cancellation or termination Net Proceeds of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale an issuance of Equity Interests in the Borrower;
(other than Disqualified Equity Interestsvii) payments of the Parent Borrower (it being understood such amounts will not increase Indebtedness in an amount equal to the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment and after giving effect thereto, (i) no Default or other distribution, no Event of Default shall have occurred and be continuing or would result therefrom or and (2ii) no Default shall exist or would result therefrom on at the date such Person provides notice time of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist and to the incurrence of any Indebtedness in connection therewith (but disregarding the proceeds of any such Indebtedness in calculating Unrestricted Domestic Cash), the Net Leverage Ratio is not greater than 2.00 to 1.00;
(viii) the Borrower may make any payments or result therefrom deliveries in shares of common stock (or other securities or property following a merger event or other change of the common stock of the Borrower) (yand cash in lieu of fractional shares) no Default shall exist or would result therefrom on and/or cash required by the date such Person provides notice terms of, and otherwise perform its obligations under, any Permitted Convertible Indebtedness (including, without limitation, making payments of such payment or distribution interest and such payment or distribution shall be made within 90 days of such noticeprincipal there-on, making payments due upon required repurchase thereof and/or making payments and deliveries due upon conversion thereof); and
(viix) payment-in-kind interest with respect to Restricted Indebtedness permitted the purchase of any Permitted Bond Hedge Transaction by this Agreement;the Borrower and the performance of its obligations thereunder.
(viic) payments The Borrower will not, nor will it permit any Subsidiary to, enter into or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
be party to, or make any payment under, any Synthetic Purchase Agreement unless (viiii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated any Synthetic Purchase Agreement related to any Equity Interests of the Borrower, the payments required to be made by the Borrower are limited to amounts permitted to be paid under Section 6.08(a), (ii) in the case of any Synthetic Purchase Agreement related to any Restricted Indebtedness, the payments required to be made by the Borrower or the Subsidiaries thereunder are limited to the extent not prohibited by amount permitted under Section 6.08(b) and (iii) in the subordination provisions thereof (if applicable)case of any Synthetic Purchase Agreement, the obligations of the Borrower and the Subsidiaries thereunder are subordinated to the Obligations on terms satisfactory to the Required Lenders.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The None of Holdings, the Parent Borrower, any Subsidiary Term Borrower will notor any Foreign Subsidiary Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make 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) such Person Holdings may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity InterestsInterests in Holdings;
(ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithcapital stock;
(iii) the Parent Borrower may make payments to the extent constituting Holdings to permit it to make, and Holdings may make, Restricted Payments, not exceeding $5,000,000 during the term of this Agreement, 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 its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09the Subsidiaries;
(iv) repurchases by the Parent Borrower may make Permitted Tax Distributions to Holdings or any other direct or indirect equity owners of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133Parent Borrower;
(v) the Parent Borrower may pay for dividends to Holdings at such times and in such amounts as shall be necessary to permit Holdings to discharge and satisfy its obligations that are permitted hereunder (including (A) state and local taxes and other governmental charges, and administrative and routine expenses required to be paid by Holdings in the repurchase, retirement or other acquisition or retirement for value ordinary course of Equity Interests business and (B) cash dividends payable by Holdings in respect of Qualified Holdings Preferred Stock issued pursuant to clauses (b) and (c) of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing)definition thereof; provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made dividends payable by the Parent Borrower and its Restricted Subsidiaries to Holdings pursuant to this Section 6.08(a)(ixclause (iv) in order to satisfy cash dividends payable by Holdings in respect of Qualified Holdings Preferred Stock issued pursuant to clause (c) of the definition thereof may only be made after the date hereoffiscal year ending December 31, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries 2011, with Excess Cash Flow not otherwise required to be used to prepay Term Loans pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix2.11(e), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134and
(xvi) the Parent Borrower may make additional Restricted Paymentspayments to Holdings to permit it to make, and Holdings may make payments permitted by Sections 6.09(d), (e), (f) and (g); provided that (A) (x) as that, at the time of the date of any such Restricted Payment payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Event of Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment have occurred and such Restricted Payment is made within 60 days of such declaration be continuing and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of Holdings and the Parent Borrower and its Restricted Subsidiaries for are in compliance with Section 6.12; provided, further, that any payments that are prohibited because of the immediately preceding fiscal yearproviso shall accrue and may be made as so accrued upon the curing or waiver of such Default, Event of Default or noncompliance.
(b) Such None of Holdings, the Parent Borrower, any Subsidiary Term Borrower will notor any Foreign Subsidiary Borrower will, nor will it they permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) payment of secured Indebtedness (Aother than the Senior Secured Notes and Replacement Senior Secured Notes) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent of any sale of Equity Interests (other than Disqualified Equity Interests) or transfer of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)Indebtedness;
(iiiv) payments or other distributions on account payment in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, Capital Lease Obligations in an aggregate amount not to exceed the greater of $25,000,000 during the term of this Agreement less the amount of Capital Expenditures made pursuant to Section 6.14(c)(i);
(vi) payments in respect of (I) the Senior Secured Notes using proceeds from the issuance of Replacement Senior Secured Notes and 1% (II) the Senior Secured Notes, the Replacement Senior Secured Notes or the repurchase, retirement or other acquisition of Consolidated Total Assets; provided that Equity Interests in Holdings using (A) the portion of Excess Cash Flow not subject to mandatory prepayment pursuant to Section 2.11(e) or (B) any source of cash (to the extent not otherwise prohibited in this Agreement) up to an amount not to exceed (x) if after giving effect to such payment, the Leverage Ratio would be (1) at the time of any such payment or other distributionless than 2.25 to 1.00, no Default shall have occurred and be continuing or would result therefrom or $100,000,000, (2) no Default shall exist less than 2.75 to 1.00, but greater than or would result therefrom on the date such Person provides notice of such payment equal to 2.25 to 1.00, $75,000,000 and (3) less than 3.25 to 1.00 but greater than or distribution and such payment or distribution shall be made within 90 days of such notice equal to 2.75 to 1.00, $50,000,000 and (y) after giving effect theretootherwise, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice$15,000,000; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by with the terms Net Proceeds of this Agreement; andan issuance of Equity Interests in Holdings.
(viiic) payments as part None of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoingHoldings, the making Parent Borrower or any Foreign Subsidiary Borrower 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 dividendSynthetic Purchase Agreement related to any Equity Interest of Holdings, payment or other distribution the payments required to be made by Holdings are limited to amounts permitted to be paid under Section 6.08(a), (ii) in the case of any Synthetic Purchase Agreement related to any Restricted Indebtedness, the payments required to be made by Holdings, the Parent Borrower or the consummation Subsidiaries thereunder are limited to the amount permitted under Section 6.08(b) and (iii) in the case of any irrevocable redemption within 60 days after Synthetic Purchase Agreement, the date obligations of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubtHoldings, the Parent Borrower and its Restricted the Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, thereunder are subordinated to the extent not prohibited by Obligations on terms satisfactory to the subordination provisions thereof (if applicable)Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Trimas Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
: (i) such Person the Borrower and its Restricted Subsidiaries may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
; (ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
Interests; (iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
; (iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner spouse or former domestic partner spouse of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 3,000,000 (the “"Yearly Limit”") plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010the Effective Date) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “"Carryover Amount” " and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
; (vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, options or warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
; (vii) such Parent the Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Bluegrass Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
Purchase Agreement; (viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
; (ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix6.08(ix) after the date hereof, hereof and (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment therefrom; and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Pro Forma Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 2.25 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed (A) 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year (which year shall not be earlier than the 2010 fiscal year) minus (B) the amount of Investments made pursuant to Section 6.04(y)(ii) during such fiscal year (which amount shall not be less than zero).
(b) Such The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, make any payment payment, directly or indirectly, in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”)Debt, or any other 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 the Senior Unsecured Debt or any Restricted Indebtednessother payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding refinancings of Restricted Indebtedness the Senior Unsecured Debt to the extent permitted by Section 6.01;
(ii) (A) payments any payment or other distributions distribution in respect of principal or interest on, or payment or other distribution on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtednessof, the Senior Unsecured Debt, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity InterestsInterests and so long as no Change of Control would result therefrom) of the Parent Borrower (it being understood such amounts will not increase the Available Amount)Borrower, or (B) the conversion of any Restricted Indebtedness Senior Unsecured Debt to Equity Interests (other than Disqualified Equity Interests);.
(iii) on or after July 1, 2011, payments or other distributions on account in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtednessof, the Senior Unsecured Debt, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets10,000,000; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or and (2y) no Default shall exist or would result therefrom on at the date such Person provides notice time of such payment or other distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect theretothereto and to any borrowing in connection therewith, the Parent Borrower is in compliance, on a Pro Forma Basispro forma basis, with the Financial Covenantscovenants set out in Sections 7.01 and 7.02;
(iv) on or after July 1, 2011, payments or other distributions in respect of principal or interest on, or payment or other distribution on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness ifof, on a the Senior Unsecured Debt, to the extent the Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 2.50 to 1.00; 1.00 and the Borrower has delivered to the Administrative Agent a certificate of a Financial Officer, together with all relevant financial information reasonably requested by the Administrative Agent demonstrating compliance with this clause (iv). CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. 77 Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower No Loan Party will not, nor will it permit any of its Restricted Subsidiaries to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (icontingent or otherwise) such Person may declare to do so, except (a) the Borrower and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries Parent may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interestscommon stock, (b) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) so long as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities arise as a result thereof, Subsidiaries of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction may declare and pay dividends ratably to the holders of the exercise price of such their Equity Interests;
, (vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ixc) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments pursuant to and in an aggregate amount thataccordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, together with (Ad) so long as no Default exists or would arise as a result thereof, the aggregate amount of all Parent may make other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant with respect to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
Parent’s common stock and (ii) (A) payments repurchases, redemptions or other distributions on account buybacks of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted IndebtednessParent’s common stock, in an aggregate amount not to exceed $10,000,000 during any fiscal year; provided, that, with respect to each of clauses (a) through (d) above, such Person and the greater Persons holding its Equity Interests are in compliance with Section 7-80-606 of $25,000,000 the Colorado Revised Statutes, and 1% (e) so long as no Default exists or would arise as a result thereof, the Borrower may pay cash dividends to the Parent in an amount sufficient to allow the Parent to pay (i) reasonable audit and other accounting expenses incurred in the ordinary course of Consolidated Total Assets; provided that business, (xii) Taxes due and payable by the Parent to any taxing authority and reasonable expenses incurred in connection with preparation of related Tax returns and filings, (1iii) at reasonable and necessary expenses (including professional fees and expenses) incurred by the time Parent in connection with (A) registration, public offerings and exchange listing of equity securities and maintenance of the same, (B) compliance with reporting obligations under, or in connection with compliance with, federal or state securities laws, and (C) indemnification and reimbursement of directors, officers and employees in respect of liabilities relating to their serving in any such payment capacity, or other distributionobligations in respect of director and officer insurance (including premiums therefor), no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments Restricted Payments with respect to (A) the Parent’s common stock and (B) repurchases, redemptions or other distributions on account buybacks of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 Parent’s common stock pursuant to 1.00; CREDIT AGREEMENT, Page 135
clause (vd) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, above in an aggregate amount thatnot to exceed $10,000,000 during any fiscal year, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (Cv) other reasonable expenses incurred by Parent in the aggregate amount ordinary course of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to business.
(q) Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as 7.12 of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect Credit Agreement is hereby amended to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments read as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).follows:
Appears in 1 contract
Samples: Credit Agreement (Natural Grocers by Vitamin Cottage, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person the Subsidiaries may declare and make Restricted Payments pay dividends ratably with respect to their Equity Interests, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Qualified Equity Interests;
, (iiiii) Restricted Subsidiaries may declare and pay scheduled dividends payable with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made outstanding shares of Series C Preferred Stock pursuant to the holders of its Equity Interests ratably according to their intereststerms thereof in existence on the Effective Date, (iv) and, solely with respect to Subsidiaries organized in Germany, the Borrower may make other payments Restricted Payments not exceeding $10,000,000 during any fiscal year pursuant to and in accordance with domination stock option plans, employment agreements or other benefit plans approved by the Borrower’s board of directors for management, directors, former directors, employees and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 former employees of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03the Subsidiaries, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) if the Parent Borrower or any Subsidiary is granted registration as a national securities exchange under the Exchange Act by the SEC, the Borrower may pay exchange the outstanding share of Series B Preferred Stock for the repurchaseSeries D Preferred Stock, retirement and, if the Borrower or other acquisition any Subsidiary subsequently becomes an operational national securities exchange under the Exchange Act, the Borrower may redeem the outstanding share of Series D Preferred Stock, (vi) the Borrower may redeem, repurchase or retirement for value retire the outstanding shares of Series C Preferred Stock with the proceeds of (A) common Equity Interests of the Parent Borrower or (including related stock appreciation rights or similar securitiesB) held by any future, present or former director, officer, member of management, employee or consultant preferred Equity Interests of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any having terms determined in good faith by senior management of the foregoingBorrower to be no less favorable to the Lenders than those of the Series C Preferred Stock, (vii) on or after the delivery of the financial statements and the certificate of a Financial Officer pursuant to Section 5.01(a) and Section 5.01(c); , respectively, for the Borrower’s fiscal year ended December 31, 2006, the Borrower may repurchase, redeem or retire its Equity Interests in an aggregate amount in any fiscal year not to exceed 50% of Excess Cash Flow for the immediately preceding fiscal year, provided that (Ax) at the time of any such repurchasepayment, retirement or other acquisition or retirement for value no Default exists shall have occurred and be continuing or would resultresult therefrom, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior amounts required to 2010be applied to prepay Term Loans pursuant to Section 2.11(d) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus so applied and (z) an amount equal the Borrower has delivered to the cash proceeds from Administrative Agent a certificate of a Financial Officer, together with all relevant financial information reasonably requested by the sale of Equity Interests to directorsAdministrative Agent, officers, members of management, employees or consultants of demonstrating the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price calculation of such Equity Interests;
(vii) such Parent Borrower Excess Cash Flow, and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase the Borrower may make additional repurchases, redemptions and retirements of its Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) not to exceed $25,000,000 during the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes term of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearAgreement.
(b) Such The Borrower will not, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 cancelation or termination of any Restricted Indebtedness, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) replacementspayment or prepayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as, refinancingsin the form of payment and when due in respect of any Indebtedness, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Convertible Notes and Additional Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;and
(iv) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account transfer of the purchase, redemption, retirement, acquisition, cancellation property or termination of Restricted assets securing such Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. Section 6.08 of the Agreement is hereby amended by substituting the following new clause (a) The Parent Borrower will notin lieu of the like existing clause (a) :
(a) No Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to declare or make, directly or indirectly, any Restricted Payment, except:
or enter into any transaction that has a substantially similar effect or incur any obligation (contingent or otherwise) to do so, except (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrowers may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interests) common stock, and, solely with respect to Subsidiaries organized its preferred stock, payable solely in Germanyadditional shares of such preferred stock or in shares of its common stock, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträgeii) within so long as there exists no Event of Default, the meaning Borrowers may, to the extent required by law, repurchase fractional shares of Section 291 Borrowers’ Equity Interests up to an aggregate repurchase total for all fractional shares repurchased of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
$500,000, (iii) the Borrowers may issue its common stock pursuant to the extent constituting Restricted PaymentsBorrowers’ equity incentive plan existing on the Effective Date, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower the Borrowers may purchase shares of partial interests in its Borrowers’ Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may and/or declare and pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that cash dividends so long as (A) there exists no Event of Default, and (B) at the time of such purchase of shares and/or payment of cash dividends the Company’s Funded Debt to EBITDA Ratio calculated on a pro forma basis after giving effect to such purchase of shares and/or payment of cash dividends is less than or equal to 1.75 to 1.00; provided, however, if at any time of the Company’s Funded Debt to EBITDA Ratio determined on a pro form basis at such repurchasetime after giving effect to such purchase of shares and/or payment of cash dividends is greater than 1.75 to 1.00, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount combined total for the purchase of Restricted Payments made under this clause (v) in any fiscal year all shares and payment of cash dividends shall be permitted so long as it does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including 12,000,000 in any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yeartrailing twelve month period.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Samples: Credit Agreement (Escalade Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person the Subsidiaries may declare and make Restricted Payments pay dividends ratably with respect to their Equity Interests, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Qualified Equity Interests;
, (iiiii) Restricted Subsidiaries may declare and pay scheduled dividends payable with respect to their Equity Interests the outstanding shares of Series C Preferred Stock pursuant to the terms thereof in existence on the Effective Date, (provided that if such iv) the Borrower may make Restricted Subsidiary is Payments not wholly-owned exceeding $10,000,000 during any fiscal year pursuant to and in accordance with stock option plans, employment agreements or other benefit plans approved by the Parent Borrower’s board of directors for management, such dividends must be made directors, former directors, employees and former employees of the Borrower and the Subsidiaries, (v) if the Borrower or any Subsidiary subsequently becomes an operational national securities exchange under the Exchange Act, the Borrower may redeem the outstanding share of Series D Preferred Stock, (vi) on or after the delivery of the financial statements and the certificate of a Financial Officer pursuant to Section 5.01(a) and Section 5.01(c), respectively, for the holders of Borrower’s fiscal year ended December 31, 2006, the Borrower may repurchase, redeem or retire its Equity Interests ratably according in an aggregate amount in any fiscal year not to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning exceed 50% of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay Excess Cash Flow for the repurchaseimmediately preceding fiscal year, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (Ax) at the time of any such repurchasepayment, retirement or other acquisition or retirement for value no Default exists shall have occurred and be continuing or would resultresult therefrom, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior amounts required to 2010be applied to prepay Term Loans pursuant to Section 2.11(d) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus so applied and (z) an amount equal the Borrower has delivered to the cash proceeds from Administrative Agent a certificate of a Financial Officer, together with all relevant financial information reasonably requested by the sale of Equity Interests to directorsAdministrative Agent, officers, members of management, employees or consultants of demonstrating the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price calculation of such Equity Interests;
Excess Cash Flow and (vii) such Parent the Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement additional repurchases, redemptions and in connection with the consummation retirements of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of its Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) not to exceed $25,000,000 during the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes term of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearAgreement.
(b) Such The Borrower will not, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) replacementspayment or prepayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as, refinancingsin the form of payment and when due in respect of any Indebtedness, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Convertible Notes and Additional Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) (A) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness, in each case in exchange for, or out transfer of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135and
(v) payments or other distributions on account of under the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Tranche C Additional Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Intercompany Loan.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make 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) such Person the Borrower may declare and make Restricted Payments pay dividends with respect to its Equity Interests common stock payable solely in additional shares of its Equity Interests;common stock, and, with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock,
(ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their capital stock, membership or partnership interests or other similar Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;Interests,
(iii) the Borrower may declare and pay dividends or make other distributions to Holdings, the proceeds of which are used by Holdings or a Parent to purchase or redeem Equity Interests of Holdings or a Parent acquired by employees, consultants or directors of Holdings, the Borrower or any Restricted Subsidiary upon such Person’s death, disability, retirement or termination of employment; provided that the aggregate amount of such purchases or redemptions under this clause (iii) shall not exceed $10,000,000 in any fiscal year (and, to the extent constituting Restricted Paymentsthat the aggregate amount of purchases or redemptions made in any fiscal year pursuant to this clause (iii) is less than $10,000,000, the amount of such difference may be carried forward and used for such purpose in the following fiscal year) and $30,000,000 in the aggregate,
(iv) the Borrower may make Restricted Payments to Holdings to be used by Holdings solely to pay (or to allow a Parent to pay) its franchise taxes and other fees required to maintain its corporate existence and to pay for general corporate and overhead expenses (including salaries and other compensation of employees) and other expenses in its capacity as the parent of Borrower incurred by Holdings or a Parent in the ordinary course of its business or used to pay fees and expenses (other than to Affiliates) relating to any unsuccessful debt or equity financing; provided that such Restricted Payments shall not exceed $5,000,000 in any fiscal year,
(v) with respect to any taxable period (or portion thereof) with respect to which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income tax group for U.S. federal and/or applicable state or local income tax purposes of which Holdings or a Parent is the common parent (a “Tax Group”), the Borrower may make Restricted Payments to Holdings (or any such Parent) in an amount necessary to enable Holdings (or such Parent, as applicable) to pay the portion of any consolidated, combined or similar U.S. federal, state or local income Taxes (as applicable) of such Tax Group for such taxable period that are directly attributable to the taxable income of the Borrower and/or its applicable Subsidiaries; provided that the amount of any such Restricted Payments pursuant to this clause (v) shall not exceed the amount of such Taxes that the Borrower and/or its applicable Subsidiaries would have paid had the Borrower and/or such Subsidiaries, as applicable, been a stand-alone corporate taxpayer (or a stand-alone corporate group); provided, further, that the payment of Restricted Payments pursuant to this clause (v) in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to the Borrower or any of its Restricted Subsidiaries for such purpose,
(vi) cashless repurchases of Equity Interests of Holdings deemed to occur upon exercise of stock options or warrants or upon vesting of common stock, if such Equity Interests represent a portion of the exercise price or withholding obligations of such options, warrants or common stock,
(vii) the Borrower and its Restricted Subsidiaries may enter into transactions expressly make a payment of any dividend or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement (provided that such date of declaration or giving of notice of redemption shall be deemed to be a Restricted Payment and shall utilize capacity under another provision of this Section 6.08),
(viii) the Borrower and its Restricted Subsidiaries may make payments, directly or indirectly, to Holdings or any other direct or indirect parent company of the Borrower to pay management, consulting and advisory fees or any other amounts payable to any Permitted Holder to the extent permitted by Sections 6.03, 6.04, 6.05 or Section 6.09;,
(ivix) repurchases by Parent [Reserved],
(x) the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount not exceeding the Available Amount immediately prior to the time of partial interests in its Equity Interests for nominal amounts which are required the making of such Restricted Payment; provided that (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately after giving effect to be repurchased such Restricted Payment on a Pro Forma Basis, the Total Net Leverage Ratio does not exceed 5.75:1.00,
(xi) the Borrower may make Restricted Payments to Holdings to pay any non-recurring fees, cash charges and cost expenses incurred in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of or Indebtedness, in each case only to the Parent extent that such transaction is not consummated,
(xii) the Borrower and its Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount not to exceed $40,000,000 (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of together with the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner aggregate amount of any prepayments, redemptions, defeasances, repurchases or other retirement of the foregoingSpecified Indebtedness under Section 6.08(b)(iv); provided that (A) at the time no Event of any such repurchase, retirement or other acquisition or retirement for value no Default exists has occurred and is continuing or would result, result therefrom,
(Bxiii) the aggregate amount Borrower and its Restricted Subsidiaries may make other Restricted Payments; provided that (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately after giving effect to such Restricted Payments made under this clause (v) in any fiscal year Payment on a Pro Forma Basis, the Total Net Leverage Ratio does not exceed 4.00:1.00,
(x) $10,000,000 (the “Yearly Limit”) plus (yxiv) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Restricted Subsidiaries may make any Restricted Payment in connection with payments for the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of options, rights or warrants to the extent such Equity Interests to pay taxes;represent a portion of the exercise price of those options, rights or warrants,
(ixxv) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments cash payments in an aggregate amount that, together with (A) lieu of fractional shares issuable as dividends on preferred stock or upon the aggregate amount conversion of all other Restricted Payments made by any convertible debt securities of the Parent Borrower and its Restricted Subsidiaries pursuant Subsidiaries,
(xvi) payment of fees and reimbursement of other expenses to this the Permitted Holders in connection with the U.S. Healthworks Transactions permitted by Section 6.08(a)(ix) after the date hereof6.09 shall be permitted, and
(Bxvii) the aggregate amount Borrower may make Restricted Payments of all Investments made by up to $39,000,000 in connection with the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available AmountAmendment No. 3 Transactions; provided that (x) as cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from members of management of the date Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearPayment.
(b) Such The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, make make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of any purchase, redemption, retirement, acquisition, cancellation principal of or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”)interest on, or any other 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 of, any Second Lien Term Loans, any Permitted Debt (other than Permitted Debt secured on a pari passu basis with the Obligations) or any Subordinated Indebtedness (other than the intercompany loans among Restricted Subsidiaries and the Borrower) (“Specified Indebtedness”), except:
(i) replacementspayment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancingsother than, amendmentsin the case of Subordinated Indebtedness, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to as prohibited by the extent permitted by Section 6.01;subordination provisions thereof,
(ii) (A) payments the conversion or exchange of any Specified Indebtedness into, or redemption, repurchase, prepayment, defeasance or other distributions on account retirement of any such Indebtedness with the Net Proceeds of the purchase, redemption, retirement, acquisition, cancellation issuance by Holdings or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale a Parent of Equity Interests (other than Disqualified Equity Interestsor capital contributions in respect thereof) of Holdings or a Parent after the Parent Borrower (it being understood Closing Date to the extent not Otherwise Applied, plus any fees and expenses in connection with such amounts will not increase the Available Amount)conversion, exchange, redemption, repurchase, prepayment, defeasance or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);retirement,
(iii) payments or other distributions on account of the purchaseprepayment, redemption, retirementdefeasance, acquisition, cancellation repurchase or termination other retirement of Restricted Indebtedness, in Specified Indebtedness for an aggregate amount purchase price not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as no Event of the date of such payment or distribution Default has occurred and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist is continuing or would result therefrom and (y) immediately after giving effect to such prepayment, redemption, defeasance, repurchase or other retirement of Specified Indebtedness on a Pro Forma Basis, the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; andTotal Net Leverage Ratio does not exceed 5.75:1.00,
(viiv) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments additional prepayments, redemptions, defeasances, repurchases or other retirement of principal Specified Indebtedness in an aggregate amount not to exceed $40,000,000 (together with the aggregate amount of any Restricted Payments made under clause Section 6.08 (a)(xii)); provided that no Event of Default has occurred and payments is continuing or would result therefrom,
(v) other prepayments, redemptions, defeasances, repurchases or other retirement of interestSpecified Indebtedness; provided that (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately after giving effect to such prepayment, feesredemption, expenses and indemnification defeasance, repurchase or similar obligations in respect other retirement of Restricted Specified Indebtedness when dueon a Pro Forma Basis, and in the case Total Net Leverage Ratio does not exceed 4.00:1.00,
(vi) refinancings of Subordinated Indebtedness, Indebtedness to the extent not prohibited by the subordination provisions thereof Indebtedness being incurred in connection with such refinancing is a Permitted Refinancing; and
(if applicable)vii) the prepayment in full of the loans under the Initial Second Lien Credit Agreement on the Amendment No. 1 Effective Date and the prepayment in full of the Second Lien Term Loans on or about the Amendment No. 6 Effective Date; and
(viii) the prepayment, redemption, defeasance, repurchase or other retirement of Specified Indebtedness with Declined Proceeds.
Appears in 1 contract
Samples: First Lien Credit Agreement (Select Medical Holdings Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(i) such Person each Subsidiary may declare and make Restricted Payments with respect to its the Borrower or any other Subsidiary; provided that in the case of any such Restricted Payment by a Subsidiary that is not a Wholly Owned Subsidiary of the Borrower, such Restricted Payment is made to the Borrower and/or any Subsidiary and to each other owner of Equity Interests payable solely in additional shares of its such Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(ii) Restricted Subsidiaries the Borrower and each Subsidiary may declare and pay dividends with respect to their make dividend payments or other distributions payable solely in the Equity Interests (provided that if of such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithPerson;
(iii) Restricted Payments made on or substantially contemporaneously with the Effective Date to consummate the extent constituting Restricted PaymentsTransactions, including to finance the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09payment of Transaction Costs;
(iv) repurchases of Equity Interests in the Borrower or any Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price or withholding taxes payable in connection with the exercise of such options or warrants or other incentive interests;
(v) Restricted Payments used to redeem, acquire, retire, repurchase or settle the Borrower’s Equity Interests (or any options, warrants, restricted stock or stock appreciation rights or similar securities issued with respect to any such Equity Interests) held directly or indirectly by Parent current or former officers, managers, consultants, members of the Board of Directors, employees or independent contractors (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of the Lead Borrower (or any direct or indirect parent thereof), and its Subsidiaries (in each case, other than the executive management (i.e., the CEO, the CFO, any executive vice presidents and any similar executive management positions)), upon the death, disability, retirement or termination of partial interests employment of any such Person or otherwise in accordance with any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement in an aggregate amount after the Effective Date not to exceed $10,000,000 in any fiscal year of the Lead Borrower with unused amounts in any fiscal year being carried over solely to the next succeeding fiscal years; provided that such amount in any fiscal year may be increased by (1) an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or the Subsidiaries after the Effective Date, or (2) the amount of any bona fide cash bonuses otherwise payable to members of the Board of Directors, consultants, officers, employees, managers or independent contractors the Borrower or any Subsidiary that are foregone in return for the receipt of Equity Interests, the fair market value of which is equal to or less than the amount of such cash bonuses, which, if not used in any year, may be carried forward solely to the next subsequent fiscal year; provided further that cancellation of Indebtedness owning to the Borrower or any Subsidiary from members of the Board of Directors, consultants, officers, employees, managers or independent contractors (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of the Borrower or any Subsidiary in connection with a repurchase of Equity Interests of the Borrower will not be deemed to constitute a Restricted Payment for purposes of this Section 6.07 or any other provisions of this Agreement.
(vi) [reserved];
(vii) in addition to the foregoing Restricted Payments, the Borrower may make additional Restricted Payments, in an aggregate amount, when taken together with the aggregate amount of loans and advances previously made pursuant to Section 6.04(m) in lieu of Restricted Payments permitted by this clause (vii), not to exceed the sum of (A) the Available Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of such Restricted Payment, plus (B) the Available Equity Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of such Restricted Payment; provided that any Restricted Payment made in reliance on preceding clause (A) shall be subject to, (x) no Event of Default having occurred and be continuing or resulting therefrom (tested at the time of declaration of such Restricted Payment) and (y) before and after giving Pro Forma Effect to such Restricted Payment, on a Pro Forma Basis, the Total Net Leverage Ratio being less than or equal to 3.06 to 1.00 as of the end of the most recently ended Test Period (tested at the time of declaration of such Restricted Payment);
(viii) redemptions in whole or in part of any of its Equity Interests for nominal amounts which are required another class of its Equity Interests or with proceeds from substantially concurrent equity contributions;
(ix) payments made or expected to be repurchased made in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options or warrants to permit and the issuance vesting of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133restricted stock and restricted stock units;
(vx) the Parent Borrower may Restricted Payments to pay for the repurchasecash in lieu of fractional Equity Interests in connection with any dividend, retirement split or combination thereof or any Permitted Acquisition (or other acquisition similar Investment) and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(xi) payments made or retirement for value expected to be made by the Borrower or any Subsidiary in respect of withholding or similar Taxes payable upon exercise of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former employee, director, officer, member of management, employee manager or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner their respective controlled Affiliates or former domestic partner of any of the foregoing); provided that (Apermitted transferees) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase repurchases of Equity Interests deemed to occur upon the non-cash exercise of stock options or warrants if such Equity Interests to pay represent a portion of the exercise price of such options or warrants or required withholding or similar taxes;
(ixxii) the Parent Borrower and its Restricted Subsidiaries may make [Reserved];
(xiii) [Reserved];
(xiv) [Reserved];
(xv) additional Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant not to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount$120,000,000; provided that (x) as of the date of any after giving effect to such Restricted Payment and after giving effect thereto no Event of Default shall exist exists or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134therefrom;
(xxvi) the Parent Borrower may make [Reserved]; and
(xvii) additional Restricted Payments; provided that after giving effect to such Restricted Payment (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Total Net Leverage Ratio is equal to or less than 4.00 2.81 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower 1.00 and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount no Event of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist exists or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)therefrom.
Appears in 1 contract
Samples: First Lien Credit Agreement (Franchise Group, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and the Borrower will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrower may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its capital stock payable solely in additional shares of its Equity Interests common stock, (ii) Subsidiaries may make Restricted Payments ratably according to their interests) and, solely with respect to Subsidiaries organized in Germanytheir capital stock, (iii) the Borrower may make other payments Restricted Payments pursuant to and in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 stock option plans or other benefit plans for management or employees of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted the Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests to Holdings in its Equity Interests for nominal such amounts which are required to and at such times as shall be repurchased in connection with the exercise of stock options or warrants necessary to permit the issuance Holdings to purchase or otherwise redeem or acquire capital stock of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement Holdings issued to management or other acquisition or retirement for value of Equity Interests employees of the Parent Borrower (including related stock appreciation rights or similar securities) held by any futureand the Subsidiaries, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under by the Borrower pursuant to this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ixiii) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) Effective Date shall not at any time exceed 25% $1,000,000 plus the aggregate amount of Net Proceeds theretofore received by the Borrower after the Effective Date that are attributable to the issuance by Holdings of shares of its common stock to management or employees of the Consolidated Net Income Borrower and the Subsidiaries pursuant to transactions that do not constitute Prepayment Events, (iv) the Borrower may pay dividends to Holdings at such times and in such amounts, not exceeding $1,500,000 during any fiscal year, as shall be necessary to permit Holdings to pay customary administrative expenses incurred in the ordinary course of business, (v) the Borrower may make Restricted Payments to Holdings to enable Holdings to pay, or the Borrower may pay directly to Castxx Xxxxxx, xxnagement fees pursuant to the Management Agreement in an aggregate amount not to exceed (A) $625,000 during the year ending December 31, 1999, (B) $1,250,000 during each fiscal year of the Parent Borrower ending during the period commencing on January 1, 2000, and ending December 31, 2002, and (C) $2,000,000 during each fiscal year of the Borrower thereafter and (vi) if the Transition Date occurs after the Effective Date and prior to the nine month anniversary of the Effective Date and all outstanding Term Loans have been repaid in full, the Borrower may make Restricted Payments to Holdings, in an aggregate amount not to exceed the lesser of (A) the amount of the Equity Financing and (B) the amount of the Net Proceeds of the issuance of the Senior Notes less the amount of Term Loans outstanding immediately prior to such issuance, to enable Holdings to repay the Equity Financing to CHP III and its Affiliates; provided, however, that any Restricted Subsidiaries for Payment otherwise permitted by this Section 6.08(a) shall not be permitted if at the immediately preceding fiscal yeartime thereof and after giving effect thereto a Default shall have occurred and be continuing.
(b) Such The Borrower will not, nor and the Borrower will it not permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 cancelation or termination of any Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest, refinancingsprincipal payments and fees as and when due in respect of any Indebtedness, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted any subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) (A) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness, in each case in exchange for, or out transfer of the net proceeds ofproperty or assets securing such Indebtedness;
(v) the repayment of all amounts outstanding under the Existing Credit Agreement and the repayment of all Indebtedness of the Company outstanding on the Effective Date; and
(vi) after the Transition Date, the substantially concurrent sale other repayments of Equity Interests Indebtedness (other than Disqualified Equity Intereststhe Senior Notes and any Permitted Subordinated Indebtedness) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) if at the time of any such payment or repayment no Revolving Acquisition Loans are outstanding, provided that the Borrower and the Subsidiaries may repay Indebtedness (other distribution, no Default shall have occurred than the Senior Notes and be continuing or would result therefrom or any Permitted Subordinated Indebtedness) in accordance with this clause (2vi) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate principal amount that, together with (A) not exceeding $5,000,000 during the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms term of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect Agreement without regard to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will foregoing 104 100 requirement that Revolving Acquisition Loans not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)outstanding.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
, individually and cumulatively, (i) such Person may declare each of Holdings and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries each Borrower may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interests) common stock, and, solely with respect to Subsidiaries organized its preferred stock, payable solely in Germanyadditional shares of such preferred stock or in shares of its common stock, (ii) each Subsidiary of Holdings (including the Netherlands Borrower) may declare and pay dividends ratably with respect to their Equity Interests, (iii) each Loan Party may make other payments Restricted Payments, not exceeding $2,000,000 in the aggregate with regard to all such Loan Parties during any fiscal year of Holdings, pursuant to and in accordance with domination stock option plans or other benefit plans for management or employees of such Loan Party and profit and loss pooling agreements its Subsidiaries, (Beherrschungs – und Ergebnisabführungsverträgeiv) within the meaning Borrowers may make Restricted Payments to Holdings for purposes of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) paying any federal, state or local income Taxes to the extent constituting Restricted Payments, that such income Taxes are directly attributable to the Parent income of the US Borrower and its Restricted Subsidiaries may enter into Subsidiaries, paying franchise Taxes and other fees to maintain its legal existence, and paying corporate overhead expenses of Holdings including financing transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with that benefit the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent US Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
salaries or other compensation of employees who perform services for both Holdings and the US Borrower, (ixv) unless a Restriction Period is in existence, the Parent Borrower Borrowers and its Restricted Subsidiaries Holdings may make Restricted Payments from time to time in an aggregate amount that, together with not to exceed $5,000,000 during any fiscal year of Holdings; and (Avi) the Borrower and Holdings may make Restricted Payments from time to time in an aggregate amount not to exceed $0.10 per outstanding share of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), Holdings in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding each fiscal year.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 any purchase, redemption, retirement, acquisition, cancellation principal of or termination of interest on any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Subordinated Indebtedness, except:
(i) replacementspayment of regularly scheduled interest and principal payments as and when due in respect of any Subordinated Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Subordinated Indebtedness prohibited by the subordination provisions thereof; and
(ii) refinancings of Subordinated Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Samples: Credit Agreement (Libbey Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(i) such Person each of Holdings and the Borrower may declare and pay dividends or make Restricted Payments other distributions with respect to its Equity Interests payable solely in additional shares of its Equity InterestsInterests (other than Disqualified Equity Interests not permitted by Section 6.01);
(ii) Restricted Subsidiaries may declare and pay dividends or make other distributions ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithInterests;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 make Restricted Payments to Holdings (and Holdings may make Restricted Payments to any direct or 6.09;
(ivindirect parent thereof) repurchases by Parent Borrower the proceeds of partial interests in its Equity Interests for nominal amounts which are required used to be repurchased in connection with purchase, retire, redeem or otherwise acquire the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any such direct or indirect parent of Holdings) or of the Parent Borrower (following a Qualified Public Offering of the Borrower) (including related stock appreciation rights or similar securities) held by any future, then present or former directordirectors, officerconsultants, member officers or employees of managementHoldings (or of any such direct or indirect parent), employee or consultant of the Parent Borrower or any of its the Subsidiaries (or by any stock option plan or other benefit plan upon such Person’s death, disability, retirement or termination of employment or under the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner terms of any such plan or any other agreement under which such shares of the foregoing)stock or related rights were issued; provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made such purchases, redemptions or other acquisitions under this clause (va)(iii) shall not exceed in any fiscal year does not exceed $5,000,000 (plus the amount of net proceeds (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit received by Holdings during such calendar year from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase sales of Equity Interests of Holdings to directors, consultants, officers or employees of Holdings, the Parent Borrower that occurs upon the cashless exercise or any Subsidiary in connection with permitted employee compensation and incentive arrangements and (y) of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting any key-man life insurance policies received during such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interestscalendar year);
(viiiv) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase non-cash repurchases of Equity Interests deemed to occur upon the non-cash exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(v) the Borrower and its Subsidiaries may make Restricted Payments to Holdings (x) in an amount (together with loans or advances made pursuant to Section 6.04(n)) not to exceed $1,500,000 in any fiscal year, to the extent necessary to pay taxes(or allow any direct or indirect parent of Holdings to pay) its general corporate and overhead expenses incurred by Holdings (or any direct or indirect parent thereof) in the ordinary course of business, plus the amount of any reasonable and customary indemnification claims made by any director or officer of Holdings (or any direct or indirect parent thereof), (y) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence and (z) in an amount necessary to pay the Tax liabilities of Holdings (or any such direct or indirect parent) attributable to (or arising as a result of) the operations of the Borrower and its Subsidiaries; provided, however, that in the case of clause (z), the amount of such dividends shall not exceed the amount that the Borrower and its Subsidiaries would be required to pay in respect of Federal, state and local taxes and any other taxes were the Borrower and the Subsidiaries to pay such taxes as stand-alone taxpayers;
(vi) Restricted Payments made on the Closing Date to consummate the Transactions;
(vii) to the extent constituting Restricted Payments, Holdings, the Borrower and its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 6.03 or 6.09;
(viii) the Borrower and its Subsidiaries may make Restricted Payments to Holdings to finance any investment permitted to be made pursuant to Section 6.04 provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such investment and (B) Holdings shall, immediately following the closing thereof, cause (i) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or its Subsidiaries or (ii) the merger (to the extent permitted in Section 6.03) of the Person formed or acquired into the Borrower or its Subsidiaries in order to consummate such Permitted Acquisition;
(ix) the Parent Borrower and its Restricted Subsidiaries Holdings may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as proceeds of the date issuance of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date Indebtedness of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134Holdings;
(x) in addition to the Parent foregoing Restricted Payments, Holdings and the Borrower may make additional Restricted Payments; Payments provided that (A) (x) as of that, at the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and time such Restricted Payment is made within 60 days of such declaration and (B) if made, the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01Conditions are satisfied;
(iixi) the distribution, as a dividend or otherwise (A) payments or other distributions on account and the declaration of the purchasesuch dividend), redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange forshares of capital stock of, or out of Indebtedness owed to the net proceeds ofBorrower or a Subsidiary by, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom Unrestricted Subsidiary so designated on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vixii) payment-in-kind interest other Restricted Payments by Holdings and the Borrower which, together with respect investments, loans and advances made pursuant to Section 6.04(w) and Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness Debt Payments made pursuant to Section 6.08(b)(x), do not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and exceed $30,000,000 in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)aggregate.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The None of Holdings, the Parent Borrower will notor any Foreign Subsidiary Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make 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) such Person Holdings may (x) declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any futureHoldings, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of repurchase Equity Interests not to directors, officers, members of management, employees or consultants of the Parent Borrower or exceed $10,000,000 from former shareholders of its Subsidiaries (or the estate, heirs, family members, spouse existing or former spouse of any of the foregoing) in Subsidiaries that received such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary Holdings prior to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (Cz) repurchase the preferred stock of Holdings in an aggregate amount of all payments or distributions made by not to exceed $20,000,000, provided that, at the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration time of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment repurchase and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Event of Default shall exist or would result therefrom as have occurred and be continuing and Holdings and the Parent Borrower are in compliance with Sections 6.13 and 6.14;
(ii) Subsidiaries may declare and pay dividends ratably with respect to their capital stock;
(iii) the Parent Borrower may make payments to Holdings to permit it to make, and Holdings may make, Restricted Payments, not exceeding $2,000,000 during any fiscal year (provided that such amount shall be increased, in respect of the date of declaration fiscal year ending on December 31, 2002, and each fiscal year thereafter by an amount equal to the total unused amount of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if Payments for the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a immediately preceding fiscal year (including without giving effect to the Restricted Payment amount of any unused amounts that were carried forward to such preceding fiscal year) not to exceed in question) shall not at any time exceed 25% of the Consolidated Net Income aggregate $16,000,000), 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; 121
(iv) the Parent Borrower may pay dividends to Holdings at such times and in such amounts (A) as shall be necessary to enable Holdings to make payments permitted by clause (z) of Section 6.08(a)(i) and Sections 6.08(a)(v) and (vi) and (B) as shall be necessary to permit Holdings to discharge its other permitted liabilities;
(v) Holdings may pay Holdings Preferred Dividends and interest in respect of its Indebtedness permitted hereunder, provided that, at the time of such payment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and Holdings and the Parent Borrower are in compliance with Sections 6.13 and 6.14;
(vi) Holdings may make payments to the extent contemplated by the Recapitalization Agreement, including payments in respect of the restricted stock granted pursuant to the Restricted Subsidiaries for Stock Obligation (including payments in respect of the Restricted Stock Obligation after the date such payments were scheduled to have been made), provided that, at the time of such payment in respect of the Restricted Stock Obligation and after giving effect thereto, no Event of Default shall have occurred and be continuing;
(vii) Holdings may (x) pay the Saturn Proceeds Distribution and (y) repurchase, redeem, repay or otherwise retire the Convertible Debentures with Available Funds, proceeds from Permitted Subordinated Notes or issuances or sales of capital stock of Holdings; and
(viii) Parent Borrower may make payments to Holdings to permit it to make, and Holdings may make payments permitted by Sections 6.09(f), (g), (h) and (i); provided that, at the time of such payment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and Holdings and the Parent Borrower are in compliance with Sections 6.13 and 6.14; provided, further that any payments that are prohibited because of the immediately preceding fiscal yearproviso shall accrue and may be made as so accrued upon the curing or waiver of such Default, Event of Default or noncompliance.
(b) Such None of Holdings, the Parent Borrower will notor any Foreign Subsidiary Borrower will, nor will it they permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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, acquisitionacquisi tion, cancellation or termination of any Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) the repurchase, refinancingsredemption, amendmentsrepayment or other retirement of the Convertible Debentures as permitted by Section 6.08(a)(vii);
(iii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the subordinated Indebtedness prohibited by the subordination provisions thereof;
(iv) refinancings of Indebtedness to the extent permitted by Section 6.01;; and
(iiv) (A) payments or other distributions on account payment of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or secured Indebtedness out of the net proceeds of, the substantially concurrent of any sale of Equity Interests (other than Disqualified Equity Interests) or transfer of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);Indebtedness.
(iiic) payments or other distributions on account None of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect theretoHoldings, the Parent Borrower is or any Foreign Subsidiary Borrower 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 compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account case of the purchase, redemption, retirement, acquisition, cancellation or termination any Synthetic Purchase Agreement related to any Equity Interest of Restricted Indebtedness if, on a Pro Forma BasisHoldings, the Secured Leverage Ratio is less than 4.00 payments required to 1.00; CREDIT AGREEMENTbe made by Holdings are limited to amounts permitted to be paid under Section 6.08(a), Page 135
(vii) payments or other distributions on account in the case of the purchase, redemption, retirement, acquisition, cancellation or termination of any Synthetic Purchase Agreement related to any Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions required to be made by Holdings, the Parent Borrower and its Restricted or the Subsidiaries pursuant thereunder are limited to this the amount permitted under Section 6.08(b)(v6.08(b) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (Ciii) in the aggregate amount case of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this any Synthetic Purchase Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making obligations of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubtHoldings, the Parent Borrower and its Restricted the Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, thereunder are subordinated to the extent not prohibited by Obligations on terms satisfactory to the subordination provisions thereof (if applicable)Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Metaldyne Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to declare or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrower may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interests) common stock, and, solely with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock, (ii) Subsidiaries organized may declare and pay dividends ratably with respect to their Equity Interests, (iii) subject to Section 2.11(c), the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issuance of new common Equity Interests, (iv) the Borrower and any of its Subsidiaries may make dividends, distributions or payments with respect to awards granted to current or former employees, directors or independent contractors of any Loan Party or any of its Affiliates; provided that, no such dividends, distributions or payments shall be made in Germanycash pursuant to this clause (iv) unless (x) both immediately prior to and after giving effect (including pro forma effect) thereto, no Default or Event of Default shall occurred and be continuing and (y) such dividends, distributions and payments shall be made in accordance with the Borrower’s 2014 Equity and Incentive Compensation Plan, effective as of June 15, 2014 (as amended, restated or otherwise modified from time to time, except to the extent any such amendment, restatement or modification would be materially adverse to the Lenders) and (v) the Borrower and each Subsidiary may make other payments Restricted Payments not otherwise permitted under this Section 6.08(a), so long as the Payment Condition shall be satisfied with respect to such Restricted Payment. Notwithstanding the foregoing, and for the avoidance of doubt, (i) the conversion by holders of (including any cash payment upon conversion), or required payment of any principal or premium on, or required payment of any interest with respect to, any Permitted Convertible Notes, in each case, in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 terms of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) indenture governing such Permitted Convertible Notes, shall not constitute a Restricted Payment; provided that, to the extent both (a) the aggregate amount of cash payable upon conversion or payment of any Permitted Convertible Note (excluding any required payment of interest with respect to such Permitted Convertible Note and excluding any payment of cash in lieu of a fractional share due upon conversion thereof) exceeds the aggregate principal amount thereof and (b) such conversion or payment does not trigger or correspond to an exercise or early unwind or settlement of a corresponding portion of the Bond Hedge Transactions constituting Restricted PaymentsPermitted Call Spread Swap Agreements relating to such Permitted Convertible Note (including, for the avoidance of doubt, the Parent Borrower case where there is no Bond Hedge Transaction constituting a Permitted Call Spread Swap Agreement relating to such Permitted Convertible Note), the payment of such excess cash (any such payment, a “Cash Excess Payment”) shall constitute a Restricted Payment notwithstanding this clause (i); and its (ii) any required payment with respect to, or required early unwind or settlement of, any Permitted Call Spread Swap Agreement, in each case, in accordance with the terms of the agreement governing such Permitted Call Spread Swap Agreement shall not constitute a Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03Payment; provided that, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are to the extent cash is required to be repurchased paid under a Warrant Transaction as a result of the election of “cash settlement” (or substantially equivalent term) as the “settlement method” (or substantially equivalent term) thereunder by the Borrower (or its Affiliate) (including in connection with the exercise and/or early unwind or settlement thereof), the payment of such cash (any such payment, a “Cash Settlement Payment”) shall constitute a Restricted Payment notwithstanding this clause (ii). Notwithstanding the foregoing, the Borrower may make Restricted Payments in respect of Cash Excess Payments and/or Cash Settlement Payments so long as the Payment Condition shall be satisfied with respect thereto. Notwithstanding the foregoing, the Borrower may repurchase, exchange or induce the conversion of Permitted Convertible Notes by delivery of shares of the Borrower’s common stock options and/or a different series of Permitted Convertible Notes (which series (x) matures after, and does not require any scheduled amortization or warrants other scheduled payments of principal prior to, the analogous date under the indenture governing the Permitted Convertible Notes that are so repurchased, exchanged or converted and (y) has terms, conditions and covenants that are no less favorable to permit the Borrower than the Permitted Convertible Notes that are so repurchased, exchanged or converted (as determined by the board of directors of the Borrower, or a committee thereof, in good faith)) (any such series of Permitted Convertible Notes, “Refinancing Convertible Notes”) and/or by payment of cash (in an amount that does not exceed the proceeds received by the Borrower from the substantially concurrent issuance of only whole shares of Equity Interests; CREDIT AGREEMENTthe Borrower’s common stock and/or a Refinancing Convertible Notes plus the net cash proceeds, Page 133
(v) if any, received by the Parent Borrower may pay for pursuant to the repurchase, retirement related exercise or other acquisition early unwind or retirement for value of Equity Interests termination of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of Permitted Call Spread Swap Agreements pursuant to the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoingimmediately following proviso); provided that, substantially concurrently with, or a commercially reasonable period of time before or after, the related settlement date for the Permitted Convertible Notes that are so repurchased, exchanged or converted, the Borrower shall (A) at and, for the time avoidance of any such repurchasedoubt, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made shall be permitted under this clause Section 6.08(a) to) exercise or unwind or terminate early (v) whether in cash, shares or any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (ycombination thereof) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior Permitted Call Spread Swap Agreements, if any, corresponding to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal yearPermitted Convertible Notes that are so repurchased, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees exchanged or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearconverted.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, make or agree to pay or make, directly or indirectly, any voluntary payment or other voluntary distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other voluntary payment or other voluntary 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted to be incurred pursuant to Section 6.01, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted any Subordinated Indebtedness to the extent prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;and
(iv) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account transfer of the purchase, redemption, retirement, acquisition, cancellation property or termination of Restricted Indebtedness, in an aggregate amount that, together with assets securing such Indebtedness (A) to the aggregate amount of all other extent such payments sale or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness transfer is permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this AgreementSection 6.05). Notwithstanding the foregoing, the making of this Section 6.08(b) shall not apply to any dividenddirect or indirect prepayment, payment redemption, repurchase, conversion, settlement, amendment, modification, supplement or other distribution adjustment with respect to any Permitted Convertible Notes pursuant to their terms unless such prepayment, redemption, repurchase, conversion, settlement, amendment, modification, supplement or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment adjustment results from a default thereunder or other distribution or giving an event of the redemption notice, as applicable, will not be prohibited if, at the date type that constitutes an Event of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Default.
Appears in 1 contract
Samples: Credit Agreement (TimkenSteel Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notshall not pay or make, nor will it permit any of its Restricted Subsidiaries todirectly or indirectly, declare or make any Restricted Payment, exceptexcept that:
(i) such Person the Parent Borrower may declare and make Restricted Payments to the extent necessary to permit any Parent Company;
(A) to pay (x) general administrative costs and expenses (including corporate overhead, legal or similar expenses) and franchise fees and taxes and similar fees, taxes and expenses required to maintain the organizational existence of such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by directors, officers, members of management or employees of any Parent Company, in each case, to the extent attributable to the ownership or operations of any of PC Intermediate, any “Borrower” under the ABL Credit Agreement and the Restricted Subsidiaries and (y) without duplication of preceding clause (x), any Public Company Costs;
(B) to discharge, when and as due, tax liabilities of Issuer, or of any person that is a member of any consolidated, combined or similar income tax group of which Issuer is a member;
(C) to pay audit and other accounting and reporting expenses at such Parent Company to the extent relating to the ownership or operations of any “Borrower” under the ABL Credit Agreement and the Restricted Subsidiaries;
(D) for the payment of insurance premiums to the extent relating to the ownership or operations of any “Borrower” under the ABL Credit Agreement and the Restricted Subsidiaries;
(E) pay fees and expenses related to debt or equity offerings, investments or acquisitions permitted by this Indenture (whether or not consummated);
(F) to pay the consideration to finance any Investment permitted under Section 4.08 (provided that (x) such Restricted Payments under this clause (a)(i)(F) shall be made substantially concurrently with respect the closing of such Investment and (y) such Parent Company shall, promptly following the closing thereof, cause all such property acquired to its Equity Interests be contributed to any “Borrower” under the ABL Credit Agreement or one of the Restricted Subsidiaries, or the merger or amalgamation of the Person formed or acquired into any “Borrower” under the ABL Credit Agreement or one of the Restricted Subsidiaries, in order to consummate such Investment in a manner that causes such Investment to comply with the applicable requirements of Section 4.08 as if undertaken as a direct Investment by such Person or such Restricted Subsidiary); and
(G) without duplication of clause (A)(y) above, to pay customary salary, bonus and other benefits payable solely to directors, officers, members of management or employees of any Parent Company to the extent such salary, bonuses and other benefits are directly attributable and reasonably allocated to the operations of any “Borrower” under the ABL Credit Agreement and the Restricted Subsidiaries, in additional shares each case, so long as such Parent Company applies the amount of its Equity Interestsany such Restricted Payment for such purpose;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay (or make Restricted Payments to allow any Parent Company to pay) for the repurchase, redemption, retirement or other acquisition or retirement for value of Equity Interests Capital Stock of the any Parent Borrower (including related stock appreciation rights or similar securities) Company held by any future, present or former employee, director, officer, member of management, employee officer, manager or consultant of the Parent Borrower (or any of its Subsidiaries (Affiliate or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner Immediate Family Member thereof) of any of Parent Company, any “Borrower” under the foregoing); provided that ABL Credit Agreement or any Restricted Subsidiary;
(A) at in exchange for notes issued pursuant to Section 4.03(o), so long as the time aggregate amount of all cash payments made in respect of such notes, together with the aggregate amount of Restricted Payments made (x) pursuant to clause (D) of this clause (ii) below and (y) pursuant to Section 4.06(a)(iv), does not exceed $5,750,000 in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to the next subsequent Fiscal Year;
(B) [Reserved];
(C) in exchange for net proceeds of any key-man life insurance policies received during such repurchasefiscal year; or
(D) in exchange for Cash and Cash Equivalents in an amount not to exceed, retirement or other acquisition or retirement for value no Default exists or would result, together with (Bx) the aggregate amount of all cash payments made in respect of notes issued pursuant to Section 4.03(o) and (y) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Samples: Indenture (Party City Holdco Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrower may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interests) common stock, and, solely with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock;
(ii) Subsidiaries organized in Germany, may make other payments in accordance declare and pay dividends ratably with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithrespect to their Equity Interests;
(iii) to the extent constituting Restricted Paymentsconsistent with past practice, the Parent Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;Subsidiaries; and
(iv) repurchases consistent with past practice and subject to any increases approved by Parent the board of directors of the Borrower, the Borrower of partial interests in may declare and pay cash dividends with respect to its Equity Interests for nominal amounts which so long as no Event of Default shall have occurred and be continuing or shall result therefrom after giving pro forma effect thereto; provided, that if such cash dividends are required to funded with Indebtedness permitted hereunder, the Borrower shall be repurchased in connection compliance with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) financial covenants set forth in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the Section 6.12 both before and immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (yincluding giving effect on a pro forma basis) no Default shall exist or would result therefrom on to the date of declaration payment of such Restricted Payment dividends and such Restricted Payment is made within 60 days the incurrence of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearIndebtedness.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted under Section 6.01, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;and
(iv) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account transfer of the purchase, redemption, retirement, acquisition, cancellation property or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) assets securing such Indebtedness to the aggregate amount of all other extent such payments sale or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness transfer is permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Section 6.05.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The None of Holdings, the Parent Borrower, any Subsidiary Term Borrower will notor any Foreign Subsidiary Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make 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) such Person Holdings may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares Equity Interests of its Equity InterestsHoldings;
(ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithcapital stock;
(iii) the Parent Borrower may make payments to the extent constituting Holdings to permit it to make, and Holdings may make, Restricted Payments, not exceeding $5,000,000 during the term of this Agreement, 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 its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09the Subsidiaries;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for dividends to Holdings at such times and in such amounts as shall be necessary to permit Holdings to discharge and satisfy its obligations that are permitted hereunder (including (A) state and local taxes and other governmental charges, and administrative and routine expenses required to be paid by Holdings in the repurchaseordinary course of business and (B) cash dividends payable by Holdings in respect of Qualified Holdings Preferred Stock issued pursuant to clauses (b) and (c) of the definition thereof, retirement or other acquisition or retirement for value of Equity Interests of provided that dividends payable by the Parent Borrower to Holdings pursuant to this clause (including related stock appreciation rights or similar securitiesiv) held in order to satisfy cash dividends payable by any future, present or former director, officer, member Holdings in respect of management, employee or consultant Qualified Holdings Preferred Stock issued pursuant to clause (c) of the definition thereof may only be made after the fiscal year ending December 31, 2006 with Excess Cash Flow not otherwise required to be used to prepay Term Loans pursuant to Section 2.11(e));
(v) Parent Borrower or any of its Subsidiaries may make payments to Holdings to permit it to make, and Holdings may make payments permitted by Sections 6.09(d), (or the estatee), heirs(f), family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing(g) and (h); provided that (A) that, at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Event of Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment have occurred and such Restricted Payment is made within 60 days of such declaration be continuing and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of Holdings and the Parent Borrower and its Restricted Subsidiaries for are in compliance with Section 6.12; provided, further, that any payments that are prohibited because of the immediately preceding fiscal yearproviso shall accrue and may be made as so accrued upon the curing or waiver of such Default, Event of Default or noncompliance; and
(vi) Parent Borrower may make payments to Holdings with the proceeds of Incremental Term Loans to the extent applied pursuant to clause (b)(vi) below.
(b) Such None of Holdings, the Parent Borrower, any Subsidiary Term Borrower will notor any Foreign Subsidiary Borrower will, nor will it they permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) (A) payments or other distributions on account payment of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or secured Indebtedness out of the net proceeds of, the substantially concurrent of any sale of Equity Interests (other than Disqualified Equity Interests) or transfer of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)Indebtedness;
(iiiv) payments or other distributions on account payment in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, Capital Lease Obligations in an aggregate amount not to exceed the greater of $25,000,000 and 1% during the term of Consolidated Total Assets; provided that this Agreement less the amount of Capital Expenditures made pursuant to Section 6.14(c)(i);
(xvi) payment in respect of Existing Subordinated Notes using proceeds from (A) the issuance of Replacement Subordinated Notes, (B) any Net Proceeds from an IPO, (C) the portion of Excess Cash Flow not subject to mandatory prepayment pursuant to Section 2.11(e) or (D) any source of cash (to the extent not otherwise prohibited in this Agreement) up to an amount not to exceed (1) at if, after giving effect to such payment, the time of any such payment or other distributionLeverage Ratio would be less than 3.25 to 1.00, no Default shall have occurred and be continuing or would result therefrom or $125,000,000, (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) if, after giving effect theretoto such payment, the Leverage Ratio would be less than 4.25 to 1.00 but greater than 3.25 to 1.00, $75,000,000 and (3) otherwise, $25,000,000; and
(vii) payment of Indebtedness with the Net Proceeds of an issuance of Holdings’ Equity Interests subsequent to an IPO.
(c) None of Holdings, the Parent Borrower is or any Foreign Subsidiary Borrower 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 compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account case of the purchase, redemption, retirement, acquisition, cancellation or termination any Synthetic Purchase Agreement related to any Equity Interest of Restricted Indebtedness if, on a Pro Forma BasisHoldings, the Secured Leverage Ratio is less than 4.00 payments required to 1.00; CREDIT AGREEMENTbe made by Holdings are limited to amounts permitted to be paid under Section 6.08(a), Page 135
(vii) payments or other distributions on account in the case of the purchase, redemption, retirement, acquisition, cancellation or termination of any Synthetic Purchase Agreement related to any Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions required to be made by Holdings, the Parent Borrower and its Restricted or the Subsidiaries pursuant thereunder are limited to this the amount permitted under Section 6.08(b)(v6.08(b) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (Ciii) in the aggregate amount case of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this any Synthetic Purchase Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making obligations of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubtHoldings, the Parent Borrower and its Restricted the Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, thereunder are subordinated to the extent not prohibited by Obligations on terms satisfactory to the subordination provisions thereof (if applicable)Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Trimas Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(i) such Person Subsidiaries of the Borrower may declare and make Restricted Payments pay dividends ratably (or in a manner more favorable to the Borrower or Subsidiaries) with respect to its Equity Interests payable solely in additional shares of its Equity Intereststheir capital stock;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, Borrower may make other payments Restricted Payments pursuant to and in accordance with domination stock option plans or other benefit plans for management and profit and loss pooling agreements employees (Beherrschungs – und Ergebnisabführungsverträgeincluding former employees) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits Borrower and compensate losses its Subsidiaries; provided that the amount thereof does not exceed $2,000,000 in any Fiscal Year plus the amount transferred to the Borrower of Net Proceeds from any Equity Issuance of Holdings during such Fiscal Year to directors, officers or employees in connection therewithwith employee stock option plans or other benefit plans for management and employees permitted hereunder;
(iii) the Borrower may pay dividends to Holdings at any time in such amounts as may be necessary to permit Holdings to pay its expenses and liabilities incurred in the ordinary course and in compliance with Section 6.03(b) (other than payments in respect of Indebtedness or Restricted Payments) which are attributable or allocable to the extent constituting Restricted Payments, operations of the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09the Subsidiaries;
(iv) non-Cash repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of stock options if such Equity Interests to pay taxes;represent a portion of the exercise price of such options; and
(ixv) the Parent Borrower and its Restricted Subsidiaries or any Subsidiary may make Restricted Payments to Holdings in an aggregate amount thatamounts required for Holdings to pay federal, together with (A) state and local income Taxes imposed directly on Holdings to the aggregate amount extent such Taxes are attributable to the income of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after (including, without limitation, by virtue of Holdings being the date hereofcommon parent of a consolidated or combined tax group of which the Borrower and/or its Subsidiaries are members); provided, (B) however, that the aggregate amount of all Investments made any such dividends or distributions (plus any Taxes payable directly by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(iSubsidiaries) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration amount of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further Taxes that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with would have been payable directly by the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) Borrower and/or its Subsidiaries had the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of been the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect common parent of a fiscal year (including separate tax group that included only the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries and in amounts equal to the amounts required for the immediately preceding fiscal yearHoldings to pay franchise taxes and other fees required to maintain its corporate existence.
(b) Such The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, make or agree to pay or make, directly or indirectly, any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other payment or other distribution (whether in cashCash, 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, retirement, acquisition, cancellation or termination of any Restricted subordinated Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of fees and expenses and interest and principal payments in respect of any Indebtedness permitted by Section 6.01, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;; and
(iiiv) (A) payments any agreement to pay or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of make any such payment or other distributiondistribution in connection with a transaction that will result in the repayment in full of the Obligations.
(c) The Borrower will not, no Default shall have occurred and be continuing will not permit any Subsidiary to, furnish any funds to, make any Investment in, or would result therefrom or (2) no Default shall exist or would result therefrom on the date provide other consideration to any other Person for purposes of enabling such Person provides notice of to, or otherwise permit any such payment Person to, make any Restricted Payment or other payment, repurchase, repayment or distribution and such payment or distribution shall restricted by this Section that could not be made within 90 days of such notice and (y) after giving effect thereto, directly by the Parent Borrower is in compliance, on a Pro Forma Basis, accordance with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms provisions of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Section.
Appears in 1 contract
Samples: Senior Secured Loan Agreement (Hawaiian Telcom Holdco, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) such Person Holdings, the Borrower or any of its Subsidiaries may declare and pay or make Restricted Payments with respect to its Equity Interests that are payable solely in additional shares of its Equity Interestscommon stock (or warrants, options or other rights to acquire additional shares of its common stock);
(ii) Restricted Subsidiaries any Subsidiary of the Borrower may declare and pay dividends or make Restricted Payments to the Borrower or any Loan Party (other than Holdings), and (ii) any foreign Subsidiary of the Borrower may declare and pay or make Restricted Payments to any other foreign Subsidiary, the Borrower or any other Loan Party (other than Holdings);
(iii) the Borrower may make Restricted Payments to allow Holdings to make, and Holdings may make Restricted Payments to PubCo (w) to fund the cost of D&O insurance of PubCo in an amount not to exceed $8,000,000 in the aggregate in any fiscal year of Holdings, (x) to fund other operational expenses of Holdings and PubCo consistent with respect the limitations of Section 6.03(g) in an amount, together with the amount of any loans or advances to their Equity Interests Holdings pursuant to Section 6.04(d), not to exceed $10,000,000 in the aggregate in any fiscal year of Holdings, (provided that if y) to allow Holdings to make Permitted Tax Distributions, and Holdings may make such Restricted Subsidiary is not whollyPermitted Tax Distributions and (z) to make semi-owned by the Parent Borrower, such dividends must be made annual payments of interest in cash to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments the Permitted Convertible Notes in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithterms thereof;
(iiiiv) so long as no Event of Default has occurred and is continuing or would result therefrom and so long as prior to and immediately after giving effect thereto, (x) the Borrower’s Senior Secured Leverage Ratio for the period of four consecutive fiscal quarters ended on or most recently prior to such date would be less than 2.00 to 1.00, in each case, after giving pro forma effect to such Restricted Payment, and (y) the Borrower’s Debt Service Coverage Ratio for the period of four consecutive fiscal quarters ended on or most recently prior to such date would be greater than 1.20 to 1.00, in each case, after giving pro forma effect to such Restricted Payment, the Borrower may make Capital Distributions to Holdings and Holdings may make Capital Distributions to PubCo;
(v) the holders of Equity Interests of Holdings (other than PubCo) may exchange such interests for Class A Common stock of PubCo (or for payment by PubCo of the cash equivalent of such shares;
(vi) [reserved];
(vii) [reserved];
(viii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrower and Holdings may (i) declare and make payments and distributions to present, future and former employees, officers, or directors of Borrower and its Subsidiaries (and any spouses, ex-spouses, successors, executors, administrators, legatees, distributees, heirs, or estates of any of the foregoing) on account of redemptions of Equity Interests of Holdings held by such Persons in an aggregate amount not to exceed in any fiscal year the greater of (x) $7,500,000 and (y) 7.5% of EBITDA for such fiscal year, tested as of the time of such payments and distributions, (ii) make cash distributions to permit any direct or indirect parent company of Holdings to make payments and distributions to present, future and former employees, officers, or directors of Borrower and its Subsidiaries (and any spouses, ex-spouses, successors, executors, administrators, legatees, distributees, heirs, or estates of any of the foregoing) on account of redemptions of Equity Interests of any direct or indirect parent company of Holdings held by such Persons (provided, that such repurchases shall be deemed to occur upon the exercise of stock options or warrants or the settlement or vesting of other equity incentive awards), provided, however, that the aggregate amount of such redemptions and distributions made by Borrower during any fiscal year shall not exceed $4,000,000 in the aggregate;
(ix) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at Borrower and Holdings may make Specified PubCo Loans to PubCo as permitted under Section 6.04(q) in an aggregate amount not to exceed the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would resultSpecified Basket Amount, (B) Borrower may make Specified Holdings Distributions as permitted under Section 6.04(r) and (C) Holdings may use the aggregate amount proceeds of Restricted Payments made Specified Holdings Distributions to repurchase or redeem the Permitted Convertible Notes as permitted under this clause (v) in any fiscal year does not exceed Section 6.08(b)(v); and
(x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any extent constituting a Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directorsPayment, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries Holdings may make Restricted Payments in an aggregate amount that, together with (A) reasonably required under the aggregate amount of all other Restricted Payments made by Specified Transaction Agreements to consummate the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearSpecified Transaction].
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding payment of Restricted Indebtedness created under the Loan Documents;
(ii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiii) (A) scheduled payments or other distributions on account of Indebtedness permitted under the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)Loan Documents;
(iiiiv) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination transfer of Restricted Indebtedness, in an aggregate amount not the property or assets securing such Indebtedness to exceed the greater extent such sale or transfer is permitted by the terms of $25,000,000 and 1% of Consolidated Total AssetsSection 6.05; provided that and
(v) so long as (x) (1) at the time no Event of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on from the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice making thereof and (y) prior to and immediately after giving effect thereto, the Parent Borrower is would be in compliance, on a Pro Forma Basis, compliance with the Financial Covenants;
(iv) payments or other distributions on account each of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtednessfinancial covenants set forth in Section 6.12, in an aggregate amount thateach case, together with (A) the aggregate amount of all other after giving pro forma effect to such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereoftransaction, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) but tested as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after notice thereof is given, and Holdings may use the date proceeds of declaration of such dividend, payment Specified Holdings Distributions permitted under Section 6.04(r) to repurchase or other distribution or giving of redeem the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied Permitted Convertible Notes in accordance with the terms thereof substantially concurrently with the receipt of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)such Specified Holdings Distributions.
Appears in 1 contract
Samples: Credit Agreement (CompoSecure, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare pay or make make, directly or(a) indirectly, any Restricted Payment, except:
(i: each Restricted Subsidiary may make Restricted Payments to the Borrower or any other(i) Restricted Subsidiary; provided that in the case of any such Person Restricted Payment by a Restricted Subsidiary that is not a wholly-owned Subsidiary of the Borrower, such Restricted Payment is made to the Borrower, any Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests; Restricted Payments to satisfy appraisal or other dissenters’ rights, pursuant to or in(ii) connection with a consolidation, amalgamation, merger, transfer of assets or acquisition that complies with Section 6.03 or Section 6.04; the Borrower may declare and make Restricted Payments with respect to its Equity Interests payable dividend payments or other distributions payable(iii) solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower; [reserved];(iv) repurchases of Equity Interests in the Borrower (including related or Restricted Payments by the Borrower(v) to allow repurchases of Equity Interests in Holdings or any direct or indirect parent of Holdings), or any Restricted Subsidiary deemed to occur upon exercise of equity options or warrants or other incentive interests if such Equity Interests represent a portion of the exercise price of such equity options or warrants or other incentive interests; Restricted Payments to Holdings which Holdings may use to redeem, acquire, retire or(vi) repurchase its Equity Interests (or any options, warrants, restricted stock units or stock appreciation rights or similar securitiesother equity-linked interests issued with respect to any of such Equity Interests) (or to make Restricted Payments to allow any of Holdings’ direct or indirect parent companies to so redeem, retire, acquire or repurchase their Equity Interests or other such interests) held by any future, present current or former directorofficers, officermanagers, member of managementconsultants, employee or consultant of the Parent Borrower or any of its Subsidiaries directors and employees and other service providers (or the estatetheir respective Affiliates, spouses, former spouses, other Permitted Transferees, successors, executors, administrators, heirs, family memberslegatees or distributees) of Holdings (or any direct or indirect parent thereof), spousethe Borrower and the Restricted Subsidiaries, former spouseupon the death, domestic partner disability, retirement or former domestic partner termination of any of the foregoing); provided that (A) at the time employment or engagement of any such repurchasePerson or otherwise in accordance with any equity option or equity appreciation rights plan, retirement any management, director and/or employee equity ownership or incentive plan, equity subscription plan, profits interest, employment termination agreement or any other acquisition employment or retirement for value no Default exists service agreements with any director, officer or would resultconsultant or partnership or equity holders’ agreement; provided that, (B) except with respect to non-discretionary repurchases, the aggregate amount of Restricted Payments made under permitted by this clause (vvi) after the Effective Date, together with the aggregate amount of loans and advances to Holdings (or any direct or indirect parent thereof) made pursuant to Section 6.04(m) in lieu thereof, shall not, in any fiscal year does not of the Borrower, exceed the sum of (x) $10,000,000 (the “Yearly Limit”) plus (ya) the portion greater of $65,000,000 and 50.0% of Consolidated EBITDA for the Yearly Limit most recently ended Test Period as of such time determined on a Pro Forma Basis (net of any proceeds from each the reissuance or resale of the immediately preceding four fiscal years (not including any fiscal year ending prior such Equity Interests to 2010) which was not expended another Person received by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal yearHoldings, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by Borrower or any Restricted Payments made under this clause Subsidiary), (va) in such fiscal year) plus (z) an the amount equal to the cash proceeds of key man life insurance policies received by Holdings, the Borrower or the Restricted Subsidiaries after the Effective Date, and (a) the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of Holdings (to the Parent Borrower (it being understood such amounts will not increase extent contributed to Holdings in the Available Amount), or (B) the conversion form of any Restricted Indebtedness to common Equity Interests (other than Disqualified or Qualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by contributed to Holdings, the subordination provisions thereof (if applicable).cash proceeds from the sale of Equity 131 Exhibit 10.1
Appears in 1 contract
Samples: Credit Agreement (EverCommerce Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person may declare each of Holdings and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrower may declare and pay dividends with respect to its common stock, payable solely in additional shares of its common stock, and Holdings may declare and pay dividends with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock, (ii) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests capital stock, (provided iii) the Borrower may make Restricted Payments to Holdings to permit Holdings to make payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings, the Borrower and the Subsidiaries in an aggregate amount not to exceed $7,500,000 during any fiscal year, (iv) so long as no Default has occurred and is continuing or would result therefrom, the Borrower may make Restricted Payments to Holdings to permit Holdings to make payments of or on account of monitoring or management or similar fees payable to the Permitted Investors in an aggregate amount in any fiscal year not in excess of $500,000 (plus any reasonable out-of-pocket expenses in connection therewith), (v) Holdings may (A) redeem the Qualified Preferred Stock pursuant to a conversion into common stock of Holdings and (B) make any Restricted Payments in connection with such conversion, in each case, in accordance with the terms of the Qualified Preferred Stock, (vi) the Borrower may make Restricted Payments to Holdings at such times and in such amounts (A) not exceeding $3,000,000 during any fiscal year, as shall be necessary to permit Holdings to discharge its corporate overhead (including franchise taxes and directors fees) and other permitted liabilities and to make payments permitted by Section 6.09 and (B) as shall be necessary to pay any taxes that if such Restricted Subsidiary is not wholly-owned are due and payable by Holdings as part of a consolidated group that includes the Parent Borrower, to the extent that such dividends must be made taxes relate to the operations of the Borrower and the Subsidiaries, (vii) the holders of the Existing Preferred Stock may receive cash consideration in the Merger in an aggregate amount not to exceed $55,000,000, (viii) so long as no Default shall have occurred and be continuing or would result therefrom, Holdings may repurchase, redeem or retire its outstanding Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, or make other Restricted Payments (and the Borrower may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within Restricted Payments the meaning proceeds of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased used by Holdings to effect such repurchases, redemptions or retirements) in connection with the exercise of stock options or warrants an aggregate amount not to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that exceed (A) at in the time event the Net Leverage Ratio on a Pro Forma Basis as of any such repurchase, retirement the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available is greater than or other acquisition or retirement for value no Default exists or would resultequal to 2.00 to 1.00, (Bx) $10,000,000 minus (y) the aggregate amount of Restricted Payments previously made under pursuant to this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof), (B) in the aggregate amount of all Investments made by event the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Net Leverage Ratio on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available is less than 2.00 to 1.00 and greater than 4.50 or equal to 1.00 or 1.50 to 1.00, (x) $25,000,000 minus (y) the Secured aggregate amount of Restricted Payments previously made pursuant to this clause (viii) and (C) in the event the Net Leverage Ratio on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available is greater less than 3.00 1.50 to 1.00, then (x) $40,000,000 minus (y) the aggregate amount of Restricted Payments previously made under pursuant to this clause (xviii) and (ix) so long as no Default shall have occurred and be continuing or would result therefrom, Holdings may declare and pay dividends in respect of a fiscal year the shares of its common stock (including and the Borrower may make Restricted Payment Payments the proceeds of which are used by Holdings to make such dividend payments) in question) shall an aggregate amount not at to exceed $2,000,000 during any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Neither Holdings nor the Borrower will notwill, nor will it they permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements other than payments in respect of the Subordinated Debt or refunding the Subordinated Promissory Note prohibited by the subordination provisions thereof;
(iii) refinancings of Restricted Indebtedness to the extent permitted by Section 6.01;
(iiiv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) redemption of the Senior Subordinated Notes in accordance with the terms of the Senior Subordinated Notes Indenture with the Net Proceeds of the Initial Public Offering (including any premium (if any) and accrued and unpaid interest thereon to the date of such redemption); provided that (A) payments the aggregate principal amount of Senior Subordinated Notes redeemed pursuant to this clause (v) does not exceed 35% of the aggregate principal amount of Senior Subordinated Notes outstanding immediately prior to the consummation of the Transactions and (B) such redemption occurs no later than 90 days following the consummation of the Transactions;
(vi) redemption, repurchase and retirement of Subordinated Debt (including any premium (if any) and accrued and unpaid interest thereon to the date of such redemption, repurchase or retirement) with the Net Proceeds of any issuance of Equity Interests of Holdings (other than the Initial Public Offering) during the period of four consecutive fiscal quarters ended immediately prior to the date of such redemption, repurchase or retirement (to the extent not previously applied to repurchase Subordinated Debt, to make Permitted Acquisitions, to make Capital Expenditures or to make investments under Section 6.04 (m)); and
(vii) redemption, repurchase and retirement of Subordinated Debt (including any premium (if any) and accrued and unpaid interest thereon to the date of such redemption or repurchase), at any time during any fiscal year in an aggregate amount equal to (A) $25,000,000, plus (B) Retained Excess Cash Flow for the previous fiscal year (to the extent such Retained Excess Cash Flow has not been applied previously to make Permitted Acquisitions, to repurchase Subordinated Debt or to make Capital Expenditures).
(c) If, as a result of the receipt of any Net Proceeds by the Borrower or any Subsidiary in connection with any sale, transfer or other distributions on account disposition pursuant to Section 6.05(c) or (g), the Borrower would be required by the terms of the purchaseSenior Subordinated Notes Documents or the terms of any Additional Senior Subordinated Notes to redeem or repurchase (or to make an offer to redeem or repurchase) any Senior Subordinated Notes or Additional Senior Subordinated Notes, redemptionthen the Borrower shall, retirementor shall cause one or more of its Subsidiaries to, acquisition(i) prepay Term Loans in accordance with Section 2.11 as if such sale, cancellation transfer or termination of Restricted Indebtednessdisposition constituted a “Prepayment Event” or (ii) acquire real property, equipment or other tangible assets, in each case in exchange for, a manner that will eliminate any requirement to redeem or out of repurchase (or to make an offer to redeem or repurchase) such Senior Subordinated Notes and Additional Senior Subordinated Notes. Any such prepayment or acquisition pursuant to this clause (c) shall be made prior to the net proceeds of, first day on which the substantially concurrent sale of Equity Interests Borrower would be required to redeem or repurchase (other than Disqualified Equity Interestsor commence an offer to redeem or repurchase) of Senior Subordinated Notes or Additional Senior Subordinated Notes under the Parent Borrower (it being understood such amounts will not increase Senior Subordinated Notes Documents or the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time terms of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Additional Senior Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption noticeNotes, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Interline Brands, Inc./De)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrower may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common or preferred stock payable solely in additional shares of its Equity Interests common or preferred stock, respectively, (ii) Subsidiaries may declare and pay dividends ratably according to their interests) and, solely with respect to Subsidiaries organized in Germanytheir capital stock, (iii) the Borrower may make other payments Restricted Payments, not exceeding $1,000,000 during any fiscal year, pursuant to and in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 stock option plans or other benefit plans for management or employees of the German Borrower and the Subsidiaries, (iv) the Borrower may repurchase capital stock of the Borrower owned by former employees of the Borrower and the Subsidiaries or their assigns, estates and heirs, at a price not in excess of fair market value determined in good faith by the Board of Directors of the Borrower, in an aggregate amount during any fiscal year of the Borrower not in excess of the sum of (A) $1,000,000 plus (B) the Net Proceeds received by the Borrower during such fiscal year from the issuance of its capital stock to employees of the Borrower and the Subsidiaries, (v) the Borrower may repurchase shares of its capital stock from stockholders who were stockholders of the Borrower immediately prior to the Recapitalization, at a price not in excess of fair market value determined in good faith by the Board of Directors of the Borrower, in an aggregate amount not in excess of $1,000,000 during any fiscal year of the Borrower, (vi) upon the occurrence of an IPO (as defined in the Restated Certificate of Incorporation as in effect on the Effective Date), the Borrower may (A) redeem all or a portion of the Series A-1 Preferred Stock Corporation Act in accordance with Section 3B of the Restated Certificate of Incorporation as in effect on the Effective Date for an aggregate redemption price not in excess of the Net Proceeds received by the Borrower from such IPO (AktGas defined in the Restated Certificate of Incorporation as in effect on the Effective Date) or (B) convert all or a portion of the Preferred Stock into common stock of the Borrower in accordance with Section 3C of the Restated Certificate of Incorporation as well as distribute profits and compensate losses in connection therewith;
effect on the Effective Date, (iiivii) to the extent constituting Restricted Paymentspermitted by Section 6.01(a)(ix), the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay exchange, in accordance with Section 4 of Article II of the Restated Certificate of Incorporation as in effect on the Effective Date, the Series A-1 Preferred Stock for the repurchaseJunior Subordinated Exchange Notes, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the nonextent Kxxxxxx Electronics Taiwan Ltd. is a wholly-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as owned Subsidiary of the date Borrower, any reduction of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date capital of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearKxxxxxx Electronics Taiwan Ltd. effected ratably.
(ba) Such The Borrower will not, nor and will it not permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of Indebtedness created under the Credit Documents;
(iii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancingsother than (A) payments in respect of the Subordinated Debt or the Junior Subordinated Exchange Notes prohibited by the subordination provisions thereof and (B) any other payment in respect of the Junior Subordinated Exchange Notes, amendments, supplements, modifications, extensions, renewals, restatements or refunding except for regularly scheduled interest payments in the form of Restricted additional Junior Subordinated Exchange Notes as provided in clause (i) of the last sentence of Section 2(a) of the form of Junior Subordinated Exchange Notes annexed to the Restated Certificate of Incorporation as in effect on the Effective Date;
(iv) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135and
(v) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchasevoluntary sale or transfer of the property or assets securing such Indebtedness. Notwithstanding anything to the contrary, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries obligations pursuant to Section 6.08(a)(ix) after 6.08 shall apply and be effective only to the date hereof extent, and (C) at the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereoftime, shall if any, that such obligations would not exceed the Available Amount; provided that (x) as of the date of such payment cause a default under, violate any provision of, require any consent, waiver or distribution and after giving effect thereto no Default shall exist approval under or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoingotherwise constitute a breach under, the making of any dividend, payment or other distribution Credit Documents or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Debt Documents.
Appears in 1 contract
Samples: Credit Agreement (Knowles Electronics Holdings Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person may declare each of Holdings and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries each Borrower may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interests) common stock, and, solely with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock, (ii) Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act Borrowers (AktGother than Americana) as well as distribute profits may declare and compensate losses in connection therewith;
pay dividends ratably with respect to their Equity Interests, and (iii) to the extent constituting Restricted Paymentsso long as there exists no Event of Default, the Parent Borrower Borrowers may pay dividends or make distributions to Holdings and Integrated in an aggregate amount not greater than the amount necessary for (x) Holdings or Integrated, as the case may be, to pay its Restricted Subsidiaries may enter into transactions expressly permitted actual local and federal income tax liabilities in respect of income earned by Sections 6.03the Borrowers, 6.04, 6.05 or 6.09;
(ivy) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required Holdings and Integrated to be repurchased pay expenses incurred in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” Transactions and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal Holdings to pay expenses incurred by it in the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or ordinary course of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearbusiness.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted Subordinated Indebtedness prohibited by the subordination provisions set forth in any agreement applicable to such Subordinated Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) (A) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness, in each case in exchange for, or out transfer of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135and
(v) payments or other distributions on account payment of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made amounts contemplated by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as 1.4 of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied Account Settlement Agreement in accordance with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)thereof.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower Company will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
except (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Company may declare and pay dividends with respect to their Equity Interests its Capital Stock payable solely in additional shares of its Capital Stock, (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such ii) Subsidiaries may declare and pay cash dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely Company or any Wholly-Owned Subsidiary with respect to its Capital Stock and Wholly-Owned Subsidiaries organized in Germanymay redeem for cash shares of Capital Stock held by the Company or any other Wholly-Owned Subsidiary, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Company may make Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) exceeding $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for 1,000,000 during any fiscal year, the Yearly Limit applicable pursuant to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) and in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, accordance with stock option plans or other benefit plans for management or employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower Company and its Subsidiaries may make Subsidiaries, and (iv) so long as at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, the Company or any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries Subsidiary may make Restricted Payments in an aggregate amount that, together with (A) not to exceed $10,000,000 for the aggregate amount of Company and all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as during any fiscal year of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearCompany.
(b) Such Borrower The Company will not, nor and will it not permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding payment of Restricted Indebtedness to created under the extent permitted by Section 6.01Loan Documents;
(ii) (A) payment of regularly scheduled interest and principal payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, as and when due in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion respect of any Restricted Indebtedness (subject to Equity Interests (other than Disqualified Equity Interestsany subordination provisions thereof);
(iii) payments or other distributions on account prepayment at the consummation of the a Permitted Business Acquisition of Indebtedness assumed in connection with such Permitted Business Acquisition; 61
(iv) prepayment, purchase, redemption, retirement, acquisition, cancellation retirement or termination other acquisition of Restricted Indebtedness, in an aggregate amount not to exceed the greater 4 3/4% Subordinated Notes and the 6% Subordinated Notes by exchange for or out of $25,000,000 and 1% the proceeds received from a substantially concurrent issue of new shares of its non-mandatorily redeemable Capital Stock or from a substantially concurrent incurrence of Consolidated Total Assets; provided that Subordinated Indebtedness (xincluding mandatorily redeemable Capital Stock of the Company) within 90 days of such issuance or incurrence;
(1v) so long as at the time of any such payment or other distribution, thereof and immediately after giving effect thereto no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect theretocontinuing, the Parent Borrower is in complianceprepayment, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments retirement or other distributions on account acquisition in cash of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice6% Subordinated Notes; and
(vi) payment-in-kind interest with respect to Restricted payment of secured Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments that becomes due as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving a result of the redemption notice, as applicable, will not be prohibited if, at voluntary sale or transfer of the date of declaration property or notice assets securing such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Samples: Credit Agreement (Photronics Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare pay or make make, directly or indirectly, any Restricted Payment, except:
(i) such Person each Restricted Subsidiary of the Borrower may declare and make Restricted Payments with respect to its the Borrower or any Restricted Subsidiary of the Borrower (and, in the case of any such Subsidiary that is not a wholly-owned Subsidiary, to each other owner of Equity Interests payable solely in additional shares of its such Subsidiary ratably based on their relative ownership interests of the relevant class of Equity Interests);
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interestsextent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.03 and Section 6.04 (other than Section 6.04(j), (m), (n), (q) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewitht));
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09[reserved];
(iv) repurchases by Parent Borrower [reserved];
(v) [reserved];
(vi) [reserved];
(vii) [reserved];
(viii) [reserved];
(ix) redemptions in whole or in part of partial interests in any of its Equity Interests for nominal amounts which are required another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity 106 Interests contain terms and provisions at least as advantageous to be repurchased the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby;
(x) payments made or expected to made in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options or warrants to permit and the issuance vesting of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related restricted stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal yearrestricted stock units;
(vixi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests[reserved];
(viixii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions[reserved];
(viiixiii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;[reserved]; and
(ixxiv) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year[reserved].
(b) Such The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, make or pay, 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”)Junior Financing, or any other payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, repayment, prepayment, redemption, retirement, acquisition, cancellation or termination of any such Indebtedness prior to the scheduled maturity date thereof (collectively, “Restricted IndebtednessDebt Payments”), except:
(i) replacementspayment of regularly scheduled interest and principal payments, refinancingspayments of fees, amendmentsexpenses and indemnification obligations when due in respect of any Indebtedness, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted Indebtedness to any Junior Financing prohibited by the extent permitted by Section 6.01subordination provisions thereof;
(ii) [reserved]; and
(Aiii) the conversion of any Junior Financing to or payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of with Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)Borrower;
(iiic) payments The Borrower will not, nor will it permit any Restricted Subsidiary to, amend or modify any documentation governing any Junior Financing, in each case if the effect of such amendment or modification (when taken as a whole) is in violation of any Intercreditor Agreement or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation applicable intercreditor agreement or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)agreement.
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Credit Agreement (Invacare Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent None of Holdings, the Borrower or any other Subsidiary will not, nor will it permit any of its Restricted Subsidiaries to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, exceptor incur any obligation (contingent or otherwise) to do so, except that:
(i) such Person Holdings may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity InterestsInterests permitted hereunder;
(ii) Restricted Subsidiaries any Subsidiary may declare and pay dividends or make other distributions with respect to their its capital stock, partnership or membership interests or other similar Equity Interests (provided that if such Interests, or make other Restricted Subsidiary is not wholly-owned by the Parent BorrowerPayments in respect of its Equity Interests, such dividends must be made in each case ratably to the holders of such Equity Interests; provided that dividends paid by the Borrower to Holdings may only be paid at such times and in such amounts as shall be necessary to permit Holdings (A) to make Restricted Payments permitted to be made by it under this Section 6.08(a), (B) to make any Investment or acquisition permitted to be made by it under Section 6.04 or (C) to discharge its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination liabilities as and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithwhen due;
(iii) to Holdings may repurchase Equity Interests upon the extent constituting Restricted Payments, exercise of stock options if such Equity Interests represent a portion of the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09exercise price of such options;
(iv) repurchases by Parent Borrower Holdings may make cash payments in lieu of partial the issuance of fractional shares representing insignificant interests in its Equity Interests for nominal amounts which are required to be repurchased Holdings in connection with the exercise of stock warrants, options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133other securities convertible into or exchangeable for capital stock in Holdings;
(v) Holdings may make Restricted Payments, not exceeding $2,000,000 in the Parent aggregate for any fiscal year (plus the proceeds of any key man life insurance policy paid to Holdings or any Subsidiary during such fiscal year), pursuant to and in accordance with stock option plans or other benefit plans or agreements for directors, officers or employees of Holdings, the Borrower and the other Subsidiaries;
(vi) on the Effective Date or within 60 days thereafter, Holdings may make the Specified Distribution;
(vii) Holdings and the Subsidiaries may pay for a management fee to the repurchasePermitted Holders in an aggregate amount not to exceed $375,000 in any fiscal year of Holdings; and
(viii) Holdings may make additional Restricted Payments so long as at the time thereof and after giving effect thereto (A) no Default shall have occurred and be continuing, retirement or other acquisition or retirement for value of Equity Interests of (B) Holdings and the Parent Borrower (including related stock appreciation rights or similar securities) held by any futureshall be in compliance with the covenants set forth in Sections 6.12 and 6.13 on a pro forma basis in accordance with Section 1.05, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that for purposes of this clause (Aviii)(B), the applicable Leverage Ratio level shall be deemed to be 0.50 less than the then-applicable maximum permitted Leverage Ratio for such period pursuant to Section 6.12, (C) at the time of any such repurchasethe making thereof, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of each Restricted Payments Payment made under in reliance on this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that Basket Amount at such time and (xD) as Holdings shall have delivered to the Administrative Agent a certificate of the date a Financial Officer of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix)Holdings, in no event shall more than $300,000,000 form and substance reasonably satisfactory to the Administrative Agent, certifying that all the requirements set forth in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (xviii) in have been satisfied with respect of a fiscal year (including the to such Restricted Payment in question) shall not at any time exceed 25% Payment, together with reasonably detailed calculations demonstrating satisfaction of the Consolidated Net Income of the Parent Borrower requirements set forth in clauses (viii)(B) and its Restricted Subsidiaries for the immediately preceding fiscal year(viii)(C) above.
(b) Such None of Holdings, the Borrower or any other Subsidiary will notmake or agree to pay or make, nor will it permit any of its Restricted Subsidiaries todirectly or indirectly, make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any purchaseIndebtedness permitted under Section 6.01(a)(ii), redemption, retirement, acquisition, cancellation 6.01(a)(xi) or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”6.01(a)(xiii), or any other 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 defeasance, cancelation or termination of any Restricted such Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding regularly scheduled interest and principal payments as and when due in respect of Restricted any such Indebtedness to (other than Indebtedness permitted under Section 6.01(a)(xiii));
(ii) refinancings of any such Indebtedness (other than Indebtedness permitted under Section 6.01(a)(xiii)) with the extent proceeds of other Indebtedness permitted by under Section 6.01;
(ii) (Aiii) payments of or other distributions on account in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of any such Indebtedness made solely with Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests in Holdings (other than Disqualified Equity Interests);
(iiiiv) payments or repayment in full of, and payment of all amounts in respect thereof arising in connection with such repayment, any such Indebtedness (other distributions on account than Indebtedness permitted under Section 6.01(a)(xiii)) the aggregate principal amount of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount which did not (immediately prior to such repayment) exceed the greater of $25,000,000 and 1% of Consolidated Total Assets5,000,000; provided that and
(xv) (1) so long as at the time of any such payment or other distribution, thereof and after giving effect thereto (A) no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) Holdings and the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied in compliance with the terms of this Agreement. For the avoidance of doubtcovenants set forth in Sections 6.12 and 6.13 on a pro forma basis in accordance with Section 1.05 (provided that, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtednessany payment or distribution of or in respect of any Indebtedness permitted by Section 6.01(a)(xi) or 6.01(a)(xiii), the applicable Leverage Ratio level shall be deemed to be 0.50 less than the then-applicable maximum permitted Leverage Ratio for such period pursuant to Section 6.12), any other payment or distribution of or in respect of any such Indebtedness in an amount not to exceed the Available Basket Amount at the time of the payment or making thereof; provided that Holdings shall have delivered to the extent not prohibited by Administrative Agent a certificate of a Financial Officer of Holdings, in form and substance reasonably satisfactory to the subordination provisions thereof Administrative Agent, certifying that all the requirements set forth in this clause (if applicable)v) have been satisfied with respect to such payment or distribution, together with reasonably detailed calculations demonstrating satisfaction of the requirements set forth in clause (B) above and calculating the Available Basket Amount.
Appears in 1 contract
Samples: Credit Agreement (GFI Software S.A.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
: (i) each Restricted Subsidiary may make Restricted Payments to the Borrower or any other Restricted Subsidiary; provided that in the case of any such Person Restricted 172 Payment by a Restricted Subsidiary that is not a Wholly Owned Subsidiary of the Borrower, such Restricted Payment is made to the Borrower, any Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests; (ii) the Borrower and each Restricted Subsidiary may declare and make Restricted Payments with respect to its Equity Interests dividend payments or other distributions payable solely in additional shares the Equity Interests of its such Person (other than Disqualified Equity Interests;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
); (iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
[reserved]; (iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required payments made or expected to be repurchased made by Holdings, the Borrower or any Restricted Subsidiary in connection with the exercise respect of stock options withholding or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENTsimilar taxes payable upon exercise, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement vesting or other acquisition or retirement for value settlement of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former employee, director, officer, member of management, employee manager or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner their respective controlled Affiliates or former domestic partner of any of the foregoing); provided that (Apermitted transferees) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase repurchases of Equity Interests deemed to occur upon the non-cash exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants or required withholding or similar taxes; (v) Restricted Payments to pay taxes;
Holdings, which Holdings shall use to redeem, acquire, retire, repurchase or settle its Equity Interests (ixor any options, warrants, restricted stock or stock appreciation rights or similar securities issued with respect to any such Equity Interests) or to service Indebtedness incurred by Holdings to finance the Parent redemption, acquisition, retirement, repurchase or settlement of such Equity Interest (or make Restricted Payments to allow any of Holdings’ direct or indirect parent companies to so redeem, retire, acquire or repurchase their Equity Interests or to service Indebtedness incurred by Holdings to finance the redemption, acquisition, retirement, repurchase or settlement of such Equity Interests or to service Indebtedness incurred to finance the redemption, retirement, acquisition or repurchase of such Equity Interests), held directly or indirectly by current or former officers, managers, consultants, members of the Board of Directors, employees or independent contractors (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of Holdings (or any direct or indirect parent thereof), the Borrower and its Restricted Subsidiaries may make Restricted Payments Subsidiaries, upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement in an aggregate amount thatafter the Closing Date, together with (A) the aggregate amount of all other Restricted Payments loans and advances to Holdings made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i6.04(l) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount lieu of Restricted Payments made under permitted by this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”v), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 7,000,000 and 110.0% of Consolidated Total AssetsEBITDA for the most recently ended Test Period after giving Pro Forma Effect to the making of such Restricted Payment in any calendar year, with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of the greater of $10,500,000 and 15.0% of Consolidated EBITDA for the most recently ended Test Period after giving Pro Forma Effect to the making of such Restricted Payment in any calendar year (without giving effect to the following proviso); provided that (x) such amount in any calendar year may be increased by (1) at an amount not to exceed the time cash proceeds of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made key man life insurance policies received by the Parent Borrower (or by Holdings and its Restricted Subsidiaries pursuant contributed to this Section 6.08(b)(v) after the date hereofBorrower, (B) the aggregate which amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed increase the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).Restricted
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower Loan Parties will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
except as long as no Default or Event of Default exists or would arise therefrom (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Loan Parties may declare and pay dividends with respect to their Equity Interests capital stock payable solely in additional shares of or warrants to purchase their common stock, (provided that if such Restricted Subsidiary is not wholly-owned ii) the Loan Parties may declare splits or reclassifications of its stock into additional or other shares of its common stock, and (iii) the Borrower may pay cash dividends or otherwise transfer funds to the Parent for operating expenses incurred in the normal course of business by the Parent Borrower, such dividends must be made to or paid by the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 Parent on behalf of the German Stock Corporation Act Borrower (AktG) as well as distribute profits including all payroll and compensate losses in connection therewith;
(iii) to benefits costs for all Subsidiaries of the extent constituting Restricted PaymentsParent, the Parent Borrower telephone, travel, rent and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03other occupancy costs, 6.04professional expenses, 6.05 or 6.09;
including consulting, audit, accounting and legal expenses, corporate insurance expenses, data processing costs and other operating expenses), (iv) repurchases by the Parent Borrower of partial interests may pay cash dividends in its Equity Interests for nominal amounts which are required an amount not to be repurchased exceed $15,000,000 in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENTeach Fiscal Year, Page 133
and (v) only if the Parent Borrower may pay for the repurchasePayment Conditions are then satisfied, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment repurchase its capital stock and/or declare and after giving effect theretopay other cash dividends to its shareholders, no Default shall exist or would result therefrom or and (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income Subsidiaries of the Parent Borrower may declare and pay cash dividends to the Parent or to any other Loan Party which is its Restricted Subsidiaries for the immediately preceding fiscal yearstockholder.
(b) Such Borrower The Loan Parties will not, nor and will it not permit any of its Restricted 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, interest on, or fees or other charges with respect to any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted IndebtednessIndebtedness (other than the Obligations), exceptexcept as long as no Event of Default has occurred and is continuing or would result from such payments:
(i) replacementspayment of regularly scheduled interest, refinancingsfees, amendments, supplements, modifications, extensions, renewals, restatements or refunding and charges and principal payments as and when due in respect of Restricted any other Indebtedness permitted hereunder; and
(ii) refinancings of Indebtedness to the extent permitted by Section 6.01;.
(iic) (A) payments or other distributions on account Notwithstanding any of the purchase, redemption, retirement, acquisition, cancellation restrictions or termination of Restricted Indebtedness, limitations described in each case in exchange for, Sections 6.06(a) or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount6.06(b), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, and its Subsidiaries may repurchase its respective capital stock and equity interests and/or declare and pay cash dividends to its shareholders and members solely with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made proceeds received and tax benefits realized by the Parent Borrower and its Restricted Subsidiaries or such Subsidiary resulting from or related to the exercise of stock options granted pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made stock option plans adopted by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereofor such Subsidiary, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied which options are exercised in accordance with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations conditions described in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)such plans.
Appears in 1 contract
Samples: Credit Agreement (Stage Stores Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares each of its Equity Interests;
(ii) Restricted Subsidiaries the Loan Parties may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interests) common stock, and, solely with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock,
(ii) Borrowers’ Subsidiaries organized in Germany, may make other payments in accordance declare and pay dividends ratably with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;respect to their Equity Interests,
(iii) to the extent constituting Borrowers may make Restricted Payments, not exceeding $100,000 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 Borrowers and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;their Subsidiaries,
(iv) repurchases so long as there exists no Event of Default, the Borrowers may pay dividends or make distributions to their respective shareholders/members in an aggregate amount not greater than the amount necessary for such shareholders/members to pay their actual state and United States federal income tax liabilities in respect of income earned by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENTBorrowers after deducting any unused prior losses, Page 133and
(v) the Parent Borrower Borrowers may pay for the repurchase, retirement or make other acquisition or retirement for value of Equity Interests of the Parent Borrower Restricted Payments (including related stock appreciation rights or similar securitiesin the form of cash dividends) held by any future, present or former director, officer, member subject to the satisfaction of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” Payment Conditions and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or applicable terms and conditions of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower Sections 6.01 and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year6.04.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted under Section 6.01, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted Subordinated Indebtedness prohibited by the subordination provisions of the applicable Subordination Agreement;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;and
(iv) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account transfer of the purchase, redemption, retirement, acquisition, cancellation property or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) assets securing such Indebtedness to the aggregate amount of all other extent such payments sale or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness transfer is permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Section 6.05.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower Company will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted 118 Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) such Person the Company may declare and make Restricted Payments pay dividends, with respect to its Equity Interests common stock, payable solely in additional shares of its Equity Interestscommon stock and, with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of common stock of the Company;
(ii) any Subsidiary may make Restricted Subsidiaries Payments to the Company or any other Subsidiary of the Company;
(iii) any Subsidiary that is not a wholly owned Subsidiary may declare and pay dividends to its shareholders ratably with respect to their Equity Interests (provided that if each such Restricted Subsidiary is not wholly-owned by the Parent Borrower, shareholder's ownership interest in such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09Subsidiary;
(iv) repurchases by Parent Borrower of partial interests in the Company may repurchase its Equity Interests for nominal amounts which are required to be repurchased in connection with common stock upon the exercise of stock options or warrants to permit if such common stock represents a portion of the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133exercise price thereof;
(v) the Parent Borrower Company may pay for repurchase payment-in-kind preferred stock issued by it on or prior to the Effective Date; provided that the aggregate amount of such repurchases shall not exceed $30,000,000 during the term of this Agreement;
(vi) the Company and the Subsidiaries may make payments in respect of any redemption, repurchase, retirement acquisition, cancelation or other acquisition or retirement for value of Equity Interests shares of capital stock of the Parent Borrower (including related Company or options, stock appreciation rights or similar securities) , in each case held by any future, present then current or former directorofficers, officer, member of management, employee directors or consultant employees of the Parent Borrower Company or any of its Subsidiaries (or their estates or beneficiaries under their estates) or by an employee benefit plan, in each case upon the estatedeath, heirsdisability, family membersretirement or termination of employment of such officers, spousedirectors and employees, former spouseand the Company may redeem or repurchase shares of its common stock or options in respect thereof in connection with the repurchase provisions under employee stock option or stock purchase agreements or other agreements to compensate management employees and non-employee directors, domestic partner or former domestic partner and the Company and the Subsidiaries may make payments in respect of any redemption, repurchase, acquisition, cancelation or other retirement for value of capital stock of any Subsidiary or options in respect thereof that are the subject of any employee stock option or stock purchase plan of such Subsidiary if such Subsidiary was acquired 119 pursuant to a Permitted Acquisition; provided that the aggregate amount of all such payments made after the Effective Date shall not exceed $50,000,000;
(vii) the Company and the Subsidiaries (including the Subsidiary that is the issuer of the foregoing)applicable Equity Interest) may acquire any Equity Interest in a Subsidiary in which the Company or any other Subsidiary already holds a majority interest, but, in the event such Equity Interest is not acquired by the issuer thereof, only to the extent such acquisition of Equity Interests is permitted by Section 6.04;
(viii) the Company or any Subsidiary may acquire Equity Interests issued by it in exchange for other Equity Interests issued by it pursuant to transactions not involving other consideration;
(ix) if after the Effective Date the Company completes a single offering (on one occasion including the exercise of any over-allotment option) of its common stock resulting in Net Proceeds not less than $50,000,000, then the Company or any Subsidiary may make Restricted Payments with the Net Proceeds therefrom; provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does Net Proceeds are not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount relied upon for any fiscal yearother purpose of this Agreement that allows any expenditure, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) investment or payment based on Net Proceeds of an amount equal to the cash proceeds from the sale of Equity Interests to directorsequity offering, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made Restricted Payments permitted by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(ithis clause (ix) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount$50,000,000; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134and
(x) the Parent Borrower Company and its Subsidiaries may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under to the extent permitted by paragraph (c) of this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearSection.
(b) Such Borrower The Company will not, nor and will it not permit any of its Restricted Subsidiaries 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 any purchase, redemption, retirement, acquisition, cancellation or termination principal of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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, cancellation cancelation or termination of any Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding any such payment of Restricted Indebtedness created under the Loan Documents; 120
(ii) the Redemption and any other refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment of secured Indebtedness that becomes due as a result of the voluntary sale or other distribution, no Default shall have occurred and be continuing transfer of the property or would result therefrom or (2) no Default shall exist or would result therefrom on the date assets securing such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial CovenantsIndebtedness;
(iv) any such payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination Indebtedness permitted by paragraph (c) of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135this Section;
(v) any such payments or other distributions on account of the purchaseCompany's 7-1/8% senior notes due December 15, redemption2005;
(vi) any such payments of Indebtedness incurred in reliance on clause (vii), retirement, acquisition, cancellation (ix) or termination (xii) of Restricted Indebtedness, in an aggregate amount that, together Section 6.01(a); and
(vii) any such payments of Senior Debt or Subordinated Debt made with the Net Proceeds of any common stock issued by the Company after the Effective Date; provided that (A) the aggregate amount such Net Proceeds are not relied upon for any other purpose of all other such payments this Agreement that allows any expenditure, investment or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereofpayment based on Net Proceeds of an equity offering, (B) the aggregate amount of all other Restricted Payments such payments are made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) within twelve months after the date hereof such Net Proceeds are received and (C) the aggregate amount of all Investments such payments permitted by this clause (vii) shall not exceed $50,000,000.
(c) The Company may, and may permit any Subsidiary to, make Restricted Payments and payments of Indebtedness not otherwise permitted by this Section; provided that at the time of and after giving effect to each such Restricted Payment and each such payment of Indebtedness (and any incurrence of Indebtedness related thereto) (i) no Default shall have occurred and be continuing, (ii) the Total Leverage Ratio shall not exceed 3.5 to 1.0 and (iii) the aggregate amount of all Restricted Payments and payments of Indebtedness made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(iin reliance on this paragraph (c) after the date hereof, Effective Date shall not exceed the Available Amount; provided that sum of (x) as $75,000,000 and (y) an amount equal to 50% of Consolidated Net Income (adjusted to exclude charges and expenses up to $50,000,000 in the aggregate in respect of the Redemption and the establishment of the Company's current Permitted Receivables Financing and the credit facilities established under this Agreement) for each fiscal quarter of the Company ended after the Effective Date and prior to the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreementdetermination for which Consolidated Net Income is a positive amount. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).121
Appears in 1 contract
Samples: Credit Agreement (Fisher Scientific International Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower and the Borrowers will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to declare or make, directly or indirectly, any Restricted Payment, except:
except (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries Parent may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its capital stock payable solely in additional shares of its Equity Interests common stock or options, warrants or other rights to xxxxxxxx xxxxxx xxxxx, (xx) the Subsidiaries and the Canadian Borrower may declare and pay dividends ratably according to their interests) and, solely with respect to Subsidiaries organized in Germanytheir capital stock, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) Parent may make payments to officers, employees and directors of Parent, the Borrowers and the Subsidiaries (or to the extent constituting Restricted Paymentsrespective estate or permitted transferee under such plans or agreements of any such officer, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 employee or 6.09;
(ivdirector) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise cancelation or repurchase of common stock options (or options, warrants or other rights to purchase common stock) previously issued to such officers, employees and directors pursuant to and in accordance with stock option plans or other benefit plans or compensation agreements (or agreements entered into in connection therewith) entered into in the ordinary course of business for officers, employees and directors of Parent, the Borrowers and the Subsidiaries, either in the form of cash paid to repurchase such common stock or cash paid with respect to Indebtedness previously issued as permitted by Section 6.01(a)(xi) to repurchase such common stock, provided that all payments pursuant to this clause (iii) do not exceed (A) during any fiscal year, an aggregate amount equal to $5,000,000 plus the cash proceeds to Parent of any sale or resale of common stock during such fiscal year to other or new employees, officers or directors of Parent, the Borrowers or any Subsidiary or (B) during the term of this Agreement, an aggregate amount equal to $20,000,000 plus the cash proceeds to Parent of any sale or resale of common stock during the term of this Agreement to other or new employees, officers or directors of Parent, the Borrowers or any Subsidiary, (iv) the U.S. Borrower may pay dividends to Parent at such times and in such amounts, not exceeding $1,000,000 during any fiscal year, as shall be necessary to permit Parent to discharge liabilities of Parent, the issuance of only whole shares of Equity Interests; CREDIT AGREEMENTBorrowers and the Subsidiaries otherwise permitted to be discharged under this Agreement, Page 133
(v) the Borrowers and the Subsidiaries may make Restricted Payments to Parent Borrower in order to pay Parent's Taxes, (vi) the Borrowers and the Subsidiaries may make Restricted Payments to Parent in order for Parent (A) to satisfy obligations (other than in respect of Transaction Costs) incurred pursuant to transactions permitted under Section 6.09(d), (e) or (f) and (B) to pay for Transaction Costs up to $60,000,000, consisting of transaction advisory fees, fees to Cypress and its Affiliates, consulting fees and other miscellaneous fees and expenses and (vii) the repurchase, retirement or other acquisition or retirement for value of Equity Interests Borrowers and the Subsidiaries may make Restricted Payments to Parent at any time after the fifth anniversary of the Closing Date in order to enable Parent Borrower (including related stock appreciation rights or similar securities) held by any futureto pay cash interest on the Senior Discount Notes in accordance with their terms, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value Restricted Payment no Default exists or would resultEvent of Default shall have occurred and be continuing, (B) after giving effect to any such Restricted Payment, Parent and the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years Borrowers shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directorscompliance, officerson a pro forma basis, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or covenants set forth in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement Sections 6.14, 6.15 and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof 6.16 and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its such Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, Payments shall not exceed in any quarterly period the Available Amount; provided that (x) as of amounts due with respect to the date of any Senior Discount Notes for such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearquarter.
(b) Such Borrower Parent and the Borrowers will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, make or agree to pay or make, directly or indirectly, any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 dis tribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding payment of Restricted Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;and
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)any Permitted Receivables Financing.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries to, declare or make 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) such Person any wholly-owned Restricted Subsidiary may make Restricted Payments to the Borrower or any Restricted Subsidiary;
(ii) the Borrower may declare and make Restricted Payments with respect to its on any class of Equity Interests of the Borrower payable solely in additional shares the form of its Equity Interests;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Qualified Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithBorrower;
(iii) (a) any non-wholly owned Restricted Subsidiary of the Borrower may declare and pay cash dividends, share premiums and other distributions to its equity holders generally, or redeem shares of its equity holders generally, so long as the extent constituting Restricted Payments, the Parent Borrower and or its Restricted Subsidiary which owns the equity interests in the Restricted Subsidiary paying such dividend, premium or distribution (or redeeming such shares) receives at least its proportional share thereof (based upon its relative holding of the equity interests in such Restricted Subsidiary and taking into account the relative preferences, if any, of the various classes of equity interest of such Restricted Subsidiary) and (b) Corporate Express B.V. may repurchase or redeem the shares of its shareholders that are not Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09in an amount not to exceed $2,000,000;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments (a) not exceeding $10,000,000 in an the aggregate amount during any fiscal year, pursuant to and in accordance with equity incentive plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and for deceased and terminated employees and present and former directors (including from their estates) and (b) in accordance with the Acquisition Agreement on account of equity awards made by the Target on or prior to the Acquisition Effective Date;
(v) the Borrower may enter into option, warrant and similar derivative transactions in connection with a Permitted Convertible Notes Offering and may settle such transactions in accordance with the terms thereof;
(vi) Restricted Payments in respect of Permitted Convertible Notes permitted under Section 6.07(b);
(vii) the Borrower may declare and pay dividends payable in cash with respect to its capital stock not to exceed $0.15 per share of stock during any fiscal quarter of the Borrower; provided that, together no Event of Default shall have occurred and be continuing when any such dividend is declared; 103
(viii) the Borrower may make Restricted Payments (other than in cash) pursuant to any shareholder rights plan or similar arrangement;
(ix) the Borrower or any Restricted Subsidiary may make Restricted Payments to consummate the Transactions in accordance with the Acquisition Agreement;
(x) any Restricted Subsidiary may make Restricted Payments consisting of the Permitted Restructuring Transactions;
(xi) so long as (A) the aggregate amount no Event of all other Restricted Payments made by the Parent Borrower Default shall have occurred and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, be continuing or would result therefrom and (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment both before and after giving effect thereto on a Pro Forma Basis, the Senior Secured Net Leverage Ratio does not exceed 2.00:1.00, the Borrower may make Restricted Payments in an aggregate amount not to exceed an amount equal to the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this Section 6.07(a)(xi); and
(xii) so long as no (A) Event of Default shall exist have occurred and be continuing or would result therefrom or and (yB) no Default shall exist or would result therefrom both before and after giving effect thereto on a Pro Forma Basis, the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix)Senior Secured Net Leverage Ratio does not exceed 1.50:1.00, in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make or offer to make (or give any payment notice in respect of thereof) any purchasevoluntary or optional payment, redemptionprepayment, retirementrepurchase or redemption of, acquisitionor voluntarily or optionally defease, cancellation or termination of otherwise satisfy prior to the scheduled maturity thereof in any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes manner (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other payment or other distribution (whether in cash, securities or other property), including pursuant any sinking fund or similar deposit), on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted IndebtednessIndebtedness (including, for the avoidance of doubt, any cash payments pursuant to the Permitted Convertible Notes), or segregate funds for any such voluntary or optional payment, prepayment, repurchase, redemption or defeasance, except:
(i) replacementsany payment, refinancingsprepayment, amendmentsrepurchase, supplementsredemption, modifications, extensions, renewals, restatements defeasance or refunding refinancing of Restricted such Indebtedness to with the extent permitted by Section 6.01proceeds of Permitted Refinancing Indebtedness;
(ii) (A) payments payment of Indebtedness owed to the Borrower or other distributions on account any wholly-owned Restricted Subsidiary; provided that, if such Indebtedness is owed by a Loan Party to a Restricted Subsidiary that is not a Loan Party, no Event of the purchase, redemption, retirement, acquisition, cancellation Default shall have occurred and be continuing or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)would result therefrom;
(iii) payments or other distributions on account payment of the purchaseIndebtedness owed by any Restricted Subsidiary that is not a Loan Party;
(iv) payment, prepayment, redemption, retirementpurchase, acquisitiondefeasance or other satisfaction of Indebtedness outstanding under (i) the 2018 Notes, cancellation or termination of Restricted Indebtedness(ii) the 7.35% debentures due 2016 issued by Boise Cascade Corporation and (iii) the revenue bonds listed on Schedule 6.01, in an aggregate amount not each case, on or after the date that is six months prior to exceed the greater maturity date (as then in effect) applicable to such notes, debentures or revenue bonds, as applicable; 104
(v) payment of $25,000,000 Indebtedness under revolving and 1% other lines of Consolidated Total Assets; provided credit that have been entered into in the ordinary course of business;
(xvi) so long as (1A) at the time no Event of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (yB) both before and after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, thereto on a Pro Forma Basis, the Senior Secured Net Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENTdoes not exceed 2.00:100, Page 135
(v) payments the Borrower or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted Indebtedness, Subsidiary may prepay Restricted Indebtedness in an aggregate amount thatnot to exceed an amount equal to the portion, together with if any, of the Available Amount on such date that the Borrower elects to apply to this Section 6.07(b)(vi);
(vii) so long as (A) the aggregate amount no Event of all other such payments Default shall have occurred and be continuing or other distributions made by the Parent Borrower would result therefrom and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution both before and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on a Pro Forma Basis, the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Senior Secured Net Leverage Ratio does not exceed 1.50:1.00, the Borrower may prepay Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this AgreementIndebtedness; and
(viii) payments the Refinancing Transactions.
(c) Notwithstanding anything to the contrary contained in this Section 6.07, nothing in this Section 6.07 shall prohibit the Borrower from issuing Permitted Convertible Notes as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness otherwise permitted by under this Agreement. Notwithstanding .
(d) Nothing in Section 6.07(b) shall be construed to allow the foregoing, the making Borrower or any of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may to make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of any payment on Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not which is otherwise prohibited by the express terms of any subordination provisions thereof (if applicable)or intercreditor agreement such Restricted Indebtedness is subject to.
Appears in 1 contract
Samples: Term Loan Credit Agreement
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
, individually and cumulatively, (i) such Person may declare each of Holdings and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries each Borrower may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interests) common stock, and, solely with respect to Subsidiaries organized its preferred stock, payable solely in Germanyadditional shares of such preferred stock or in shares of its common stock, (ii) each Subsidiary of Holdings (including the Netherlands Borrower) may declare and pay dividends ratably with respect to their Equity Interests, (iii) unless a Restriction Period is in existence, each Loan Party may make other payments Restricted Payments, not exceeding $2,000,000 in the aggregate with regard to all such Loan Parties during any fiscal year of Holdings, pursuant to and in accordance with domination stock option plans or other benefit plans for management or employees of such Loan Party and profit and loss pooling agreements its Subsidiaries, (Beherrschungs – und Ergebnisabführungsverträgeiv) within the meaning Borrowers may make Restricted Payments to Holdings for purposes of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) paying any federal, state or local income Taxes to the extent constituting Restricted Payments, that such income Taxes are directly attributable to the Parent income of the US Borrower and its Restricted Subsidiaries, paying franchise Taxes and other fees to maintain its legal existence, and paying corporate overhead expenses of Holdings including financing transactions that benefit the US Borrower and its Subsidiaries may enter into transactions expressly permitted by Sections 6.03and to pay salaries or other compensation of employees who perform services for both Holdings and the US Borrower, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) unless a Restriction Period is in existence, the Parent Borrower Borrowers and Holdings may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the make Restricted Payments from time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the to time in an aggregate amount of Restricted Payments made under this clause (v) in not to exceed $5,000,000 during any fiscal year does of Holdings; and (vi) unless a Restriction Period is in existence, Borrower and Holdings may make Restricted Payments from time to time in an aggregate amount not to exceed the lesser of (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion 0.20 per outstanding share of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom Holdings or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), $4,000,000 in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding each fiscal year.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 any purchase, redemption, retirement, acquisition, cancellation principal of or termination of interest on any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Subordinated Indebtedness, except:
(i) replacementspayment of regularly scheduled interest and principal payments as and when due in respect of any Subordinated Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Subordinated Indebtedness prohibited by the subordination provisions thereof; and
(ii) refinancings of Subordinated Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Samples: Credit Agreement (Libbey Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(i) such Person each Subsidiary may declare and make Restricted Payments with respect to its the Borrower or any other Subsidiary; provided that in the case of any such Restricted Payment by a Subsidiary that is not a Wholly Owned Subsidiary of the Borrower, such Restricted Payment is made to the Borrower and/or any Subsidiary and to each other owner of Equity Interests payable solely in additional shares of its such Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(ii) Restricted Subsidiaries the Borrower and each Subsidiary may declare and pay dividends with respect to their make dividend payments or other distributions payable solely in the Equity Interests (provided that if of such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithPerson;
(iii) Restricted Payments made on or substantially contemporaneously with the Effective Date to consummate the extent constituting Restricted PaymentsTransactions, including to finance the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09payment of Transaction Costs;
(iv) repurchases of Equity Interests in the Borrower or any Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price or withholding taxes payable in connection with the exercise of such options or warrants or other incentive interests;
(v) Restricted Payments used to redeem, acquire, retire, repurchase or settle the Borrower’s Equity Interests (or any options, warrants, restricted stock or stock appreciation rights or similar securities issued with respect to any such Equity Interests) held directly or indirectly by Parent current or former officers, managers, consultants, members of the Board of Directors, employees or independent contractors (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of the Lead Borrower (or any direct or indirect parent thereof), and its Subsidiaries (in each case, other than the executive management (i.e., the CEO, the CFO, any executive vice presidents and any similar executive management positions)), upon the death, disability, retirement or termination of partial interests employment of any such Person or otherwise in accordance with any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement in an aggregate amount after the Effective Date not to exceed $10,000,000 in any fiscal year of the Lead Borrower with unused amounts in any fiscal year being carried over solely to the next succeeding fiscal years; provided that such amount in any fiscal year may be increased by (1) an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or the Subsidiaries after the Effective Date, or (2) the amount of any bona fide cash bonuses otherwise payable to members of the Board of Directors, consultants, officers, employees, managers or independent contractors the Borrower or any Subsidiary that are foregone in return for the receipt of Equity Interests, the fair market value of which is equal to or less than the amount of such cash bonuses, which, if not used in any year, may be carried forward solely to the next subsequent fiscal year; provided further that cancellation of Indebtedness owning to the Borrower or any Subsidiary from members of the Board of Directors, consultants, officers, employees, managers or independent contractors (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of the Borrower or any Subsidiary in connection with a repurchase of Equity Interests of the Borrower will not be deemed to constitute a Restricted Payment for purposes of this Section 6.07 or any other provisions of this Agreement.
(vi) [reserved];
(vii) in addition to the foregoing Restricted Payments, the Borrower may make additional Restricted Payments, in an aggregate amount, when taken together with the aggregate amount of loans and advances previously made pursuant to Section 6.04(m) in lieu of Restricted Payments permitted by this clause (vii), not to exceed the sum of (A) the Available Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of such Restricted Payment, plus (B) the Available Equity Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of such Restricted Payment; provided that any Restricted Payment made in reliance on preceding clause (A) shall be subject to, (x) no Event of Default having occurred and be continuing or resulting therefrom (tested at the time of declaration of such Restricted Payment) and (y) before and after giving Pro Forma Effect to such Restricted Payment, on a Pro Forma Basis, the Total Net Leverage Ratio being less than or equal to 3.06 to 1.00 as of the end of the most recently ended Test Period (tested at the time of declaration of such Restricted Payment);
(viii) redemptions in whole or in part of any of its Equity Interests for nominal amounts which are required another class of its Equity Interests or with proceeds from substantially concurrent equity contributions;
(ix) payments made or expected to be repurchased made in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options or warrants to permit and the issuance vesting of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133restricted stock and restricted stock units;
(vx) the Parent Borrower may Restricted Payments to pay for the repurchasecash in lieu of fractional Equity Interests in connection with any dividend, retirement split or combination thereof or any Permitted Acquisition (or other acquisition similar Investment) and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(xi) payments made or retirement for value expected to be made by the Borrower or any Subsidiary in respect of withholding or similar Taxes payable upon exercise of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former employee, director, officer, member of management, employee manager or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner their respective controlled Affiliates or former domestic partner of any of the foregoing); provided that (Apermitted transferees) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase repurchases of Equity Interests deemed to occur upon the non-cash exercise of stock options or warrants if such Equity Interests to pay represent a portion of the exercise price of such options or warrants or required withholding or similar taxes;
(ixxii) the Parent Borrower and its Restricted Subsidiaries may make [Reserved];
(xiii) [Reserved];
(xiv) [Reserved];
(xv) additional Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant not to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount$120,000,000; provided that (x) as of the date of any after giving effect to such Restricted Payment and after giving effect thereto no Event of Default shall exist exists or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134therefrom;
(xxvi) the Parent Borrower may make [Reserved]; and
(xvii) additional Restricted Payments; provided that after giving effect to such Restricted Payment (A) (x) as of on a Pro Forma Basis, the date of any such Restricted Payment and after giving effect thereto, no Default shall exist Total Net Leverage Ratio is equal to or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration less than 2.81 to 1.00 and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 no Event of Default exists or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearwould result therefrom.
(b) Such The Borrower will not, nor and will it not permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”)Junior Financing, or any other 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 Restricted IndebtednessJunior Financing, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, in each case, except:
(i) replacementspayment of regularly scheduled interest and principal payments, refinancingsmandatory offers to repay, amendmentsrepurchase or redeem, supplementsmandatory prepayments of principal, modificationspremium and interest, extensionsand payment of fees, renewalsexpenses and indemnification obligations, restatements or refunding with respect to such Junior Financing, other than payments in respect of Restricted any Junior Financing prohibited by the subordination provisions thereof;
(ii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii1) (A) payments or other distributions on account the conversion of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of any Junior Financing to Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower and (it 2) any payment that is intended to prevent any Junior Financing from being understood treated as an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code;
(iv) prepayments, redemptions, purchases, defeasances and other payments in respect of any Junior Financing; provided that after giving effect to such amounts will not increase prepayments, redemptions, purchases, defeasances or other payments (A) on a Pro Forma Basis, the Available Amount), Total Net Leverage Ratio is equal to or less than 2.81 to 1.00 and (B) the conversion no Event of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)Default exists or would result therefrom;
(iiiv) payments made in connection with, or in order to consummate, the Transactions;
(vi) (A) prepayments, redemptions, purchases, defeasances and other distributions on account payments in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, any Junior Financing in an aggregate amount not to exceed the greater of $25,000,000 80,000,000 and 125.0% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, EBITDA on a Pro Forma Basis, with Basis for the Financial Covenantsmost recently ended Test Period plus (B) the amount of Restricted Payments that may be made pursuant to Section 6.07(a)(xv) at such time;
(ivvii) additional prepayments, redemptions, purchases, defeasances and other payments or other distributions on account in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00any Junior Financing; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) provided that the aggregate amount of all such prepayments, redemptions, purchases, defeasances and other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to in reliance on this Section 6.08(b)(v) after the date hereof, clause (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereofvii), shall not exceed the sum of (A) the Available AmountAmount that is Not Otherwise Applied as in effect immediately prior to the time of making of such prepayments, redemptions, purchases, defeasances and other payments, plus (B) the Available Equity Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of such prepayments, redemptions, purchases, defeasances and other payments; provided that any prepayments, redemptions, purchases, defeasances and other payments made in reliance on preceding clause (xA) shall be subject to, before and after giving Pro Forma Effect to such prepayments, redemptions, purchases, defeasances and other payments, the Total Net Leverage Ratio being less than or equal to 3.06 to 1.00 as of the date end of the most recently ended Test Period (tested at the time of distribution or delivery of any irrevocable notice of prepayment, redemption, repurchase or defeasance, as applicable, in respect thereof);
(viii) the prepayment of any Junior Financing owed to the Borrower or a Subsidiary or the prepayment of any Permitted Refinancing of such payment or distribution and after giving effect thereto Indebtedness with the proceeds of any other Junior Financing; provided that no Default Loan Party shall exist or result therefrom or make any prepayment of any Junior Financing owed to any Subsidiary that is not a Loan Party pursuant to this clause (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such noticeviii); and
(viix) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) prepayments, redemptions, purchases, defeasances and other payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when dueany Junior Financing within one year of the scheduled maturity of such Junior Financing; provided, that after giving effect to such prepayments, redemptions, purchases, defeasances and in the case other payments, no Event of Subordinated IndebtednessDefault under paragraph (a), to the extent not prohibited by the subordination provisions thereof (if applicableb), (h) or (i) of Section 7.01 exists or would result therefrom.
Appears in 1 contract
Samples: First Lien Credit Agreement (Franchise Group, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, declare or make make, directly or indirectly, any Restricted Payment, except:
(i) such Person Borrower may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made on a pro rata basis to the holders of its Equity Interests ratably according to their interestsInterests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133;
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declarationtherefrom; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134and
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis as of the end of the most recent fiscal quarter for which financial statements were required to be delivered under Section 5.01(a) or (b) is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 2.25 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment payment, directly or indirectly, in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or Indebtedness, the NewExisting New Senior Unsecured Notes (including Notes, or any Indebtedness issued in lieu of or representing a refinancing or replacement thereofof any Indebtedness in respect of the Pari Passu Notes outstanding on the Effective Date (but, for the avoidance of doubt not the Pari Passu Notes existing on the Effective Date themselves) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted IndebtednessIndebtedness or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding refinancings of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments any payment or other distributions distribution in respect of principal or interest on, or payment or other distribution on account of the purchase, redemption, retirement, acquisition, cancellation or termination of of, Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity InterestsInterests and so long as no Change of Control would result therefrom) of the Parent Borrower (it being understood such amounts will not increase the Available Amount)Borrower, or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of of, Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets25,000,000; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or and (2y) no Default shall exist or would result therefrom on at the date such Person provides notice time of such payment or other distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect theretothereto and to any borrowing in connection therewith, the Parent Borrower is in compliance, on a Pro Forma Basispro forma basis, with the Financial Covenants;
(iv) payments or other distributions in respect of principal or interest on, or payment or other distribution on account of the purchase, redemption, retirement, acquisition, cancellation or termination of of, Restricted Indebtedness ifIndebtedness, if on a Pro Forma Basis, Basis the Secured Leverage Ratio as of the end of the most recent fiscal quarter for which financial statements were required to be delivered under Section 5.01(a) or (b) is less than 4.00 the greater of (A) 2.75 to 1.00; CREDIT AGREEMENT1.00 and (B) 0.50 to 1.00 less than the applicable Secured Leverage Ratio under the Financial Covenants for the most recently ended fiscal quarter for which financial statements have been delivered at the time of such payment or other distribution, Page 135and in each case, the Parent Borrower has delivered to the Administrative Agent a certificate of a Financial Officer, together with all relevant financial information reasonably requested by the Administrative Agent demonstrating compliance with this clause (iv);
(v) payments or other distributions on account in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of of, Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such payment payments or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such noticetherefrom; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement[reserved]; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will Issuers will, not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except that (i) any Issuer or Subsidiary may pay dividends to the Company or any other Issuer or Subsidiary (other than a Foreign Subsidiary) at such Person may declare times and make Restricted Payments with respect in such amounts during any fiscal year, as shall be necessary to its Equity Interests payable solely in additional shares of its Equity Interests;
permit the Issuers or any other Subsidiary (other than a Foreign Subsidiary) to discharge their permitted liabilities, (ii) Restricted Subsidiaries any Issuer or Subsidiary may declare and pay dividends with respect to their Equity Interests (provided a Foreign Subsidiary at such times and in such amounts so that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause the dividends paid by all Issuers (vother than the Company) in any fiscal year and all Subsidiaries to all Foreign Subsidiaries does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for 250,000 during any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause and (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(viiii) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries Company may make Restricted Payments in an aggregate amount thatthe form of dividends to the extent payable in, together or exchanges or conversions for or into, shares of common stock of the Company or options or warrants to purchase common stock of the Company; and (iv) any Issuer or Subsidiary may make Restricted Payments required by the Confirmation Order to the shareholders of the "Existing Common Stock" (as defined in the Plan of Reorganization) with respect to (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date 20% of any such Restricted Payment and after giving effect thereto no Default shall exist proceeds or would result therefrom other amounts relating to the Hickx Xxxe Lawsuit (as defined in the Credit Agreement) to which the Issuers or (y) no Default shall exist or would result therefrom on the date any of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix)their Subsidiaries are entitled, in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 2540% of any Net Proceeds (as defined in the Consolidated Net Income Credit Agreement) received by the Issuers or any of their Subsidiaries with respect to any sale, transfer or other disposition of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearTunisia Assets.
(b) Such Borrower The Issuers will not, nor and will it not permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), not permitted under Section 4.1 or any other payment or other distribution (whether in cash, securities or other propertyProperty), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)under Section 4.1.
Appears in 1 contract
Samples: Note Agreement (Coho Energy Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notAgent shall not pay or make, nor will it permit any of its Restricted Subsidiaries todirectly or indirectly, declare or make any Restricted Payment, exceptexcept that:
(i) such Person the Borrower Agent may declare and make Restricted Payments to the extent necessary to permit any Parent Company;
(A) to pay (x) general administrative costs and expenses (including corporate overhead, legal or similar expenses) and franchise fees and taxes and similar fees, taxes and expenses required to maintain the organizational existence of such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by directors, officers, members of management or employees of any Parent Company, in each case, to the extent attributable to the ownership or operations of any of Holdings, the Borrowers and their Subsidiaries and (y) without duplication of preceding clause (x), any Public Company Costs;
(B) for any taxable period in which the Borrower Agent and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Borrowers is the common parent (a “Tax Group”), to discharge the consolidated tax liabilities of such Tax Group when and as due, to the extent such liabilities are attributable to the ownership or operations of the Borrower Agent and its Subsidiaries; provided, that the amount paid by the Borrower Agent pursuant to this paragraph (B) shall not exceed the tax liabilities that would be due if the Borrower Agent and each Subsidiary were separate corporations filing income and similar tax returns on a consolidated or combined basis with the Borrower Agent as the common parent of such affiliated group (calculated at the highest combined applicable federal, state, local and foreign tax rate); provided further that the permitted payment pursuant to this paragraph (B) with respect to any taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower Agent and its Equity Interests Subsidiaries for the purposes of paying such consolidated, combined or similar taxes;
(C) to pay audit and other accounting and reporting expenses at such Parent Company to the extent relating to the ownership or operations of the Borrowers and their Subsidiaries;
(D) for the payment of insurance premiums to the extent relating to the ownership or operations of the Borrowers and their Subsidiaries;
(E) pay fees and expenses related to debt or equity offerings, investments or acquisitions permitted by this Agreement (whether or not consummated);
(F) to pay the consideration to finance any Investment permitted under Section 6.07 (provided that (x) such Restricted Payments under this clause (a)(i)(F) shall be made substantially concurrently with the closing of such Investment and (y) such Parent Company shall, promptly following the closing thereof, cause all such property acquired to be contributed to the Borrowers or one of their Subsidiaries, or the merger or amalgamation of the Person formed or acquired into the Borrowers or one of their Subsidiaries, in order to consummate such Investment in a manner that causes such Investment to comply with the applicable requirements of Section 6.07 as if undertaken as a direct Investment by such Borrower or such Subsidiary); and
(G) without duplication of clause (A)(y) above, to pay customary salary, bonus and other benefits payable solely to directors, officers, members of management or employees of any Parent Company to the extent such salary, bonuses and other benefits are directly attributable and reasonably allocated to the operations of the Borrowers and their Subsidiaries, in additional shares each case, so long as such Parent Company applies the amount of its Equity Interestsany such Restricted Payment for such purpose;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower Agent may pay (or make Restricted Payments to allow any Parent Company to pay) for the repurchase, redemption, retirement or other acquisition or retirement for value of Equity Interests Capital Stock of the any Parent Borrower (including related stock appreciation rights or similar securities) Company held by any future, present or former employee, director, officer, member of management, employee officer, manager or consultant of the Parent Borrower (or any of its Subsidiaries (Affiliate or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner Immediate Family Member thereof) of any of Parent Company, the foregoing); provided that Borrowers or any Subsidiary;
(A) at in exchange for notes issued pursuant to Section 6.01(o), so long as the time aggregate amount of all cash payments made in respect of such notes, together with the aggregate amount of Restricted Payments made (x) pursuant to clause (D) of this clause (ii) below and (y) pursuant to Section 6.05(a)(iv), does not exceed $25,000,000 in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to the next subsequent Fiscal Year;
(B) in exchange for Capital Stock of any Parent Company;
(C) in exchange for net proceeds of any key-man life insurance policies received during such repurchasefiscal year; or
(D) in exchange for Cash and Cash Equivalents in an amount not to exceed, retirement or other acquisition or retirement for value no Default exists or would result, together with (Bx) the aggregate amount of all cash payments made in respect of notes issued pursuant to Section 6.01(o) and (y) the aggregate amount of Restricted Payments made pursuant to Section 6.05(a)(iv), $25,000,000 in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to the next subsequent Fiscal Year;
(iii) the Borrower Agent may make Restricted Payments; provided that at the time they are paid by the Borrower Agent, before and after giving effect to such Restricted Payments under this clause (viii), the Payment Conditions are satisfied;
(iv) the Borrower Agent may make Restricted Payments to any Parent Company to enable such Parent Company to make Cash payments in any fiscal year does lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of such Parent Company in an amount not exceed to exceed, together with (x) $10,000,000 (the “Yearly Limit”aggregate amount of all cash payments made in respect of notes issued pursuant to Section 6.01(o) plus and (y) the aggregate amount of all Restricted Payments made pursuant to Section 6.05(a)(ii)(D), $25,000,000 in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to the next subsequent Fiscal Year;
(v) the Borrower Agent may repurchase Capital Stock upon exercise of options or warrants if such Capital Stock represents all or a portion of the Yearly Limit from each exercise price of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the options or warrants as part of a “Carryover Amountcashless” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal yearexercise;
(vi) the repurchase Borrower Agent may make Restricted Payments the proceeds of Equity Interests which are applied on the Closing Date, solely to effect the consummation of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity InterestsTransactions;
(vii) such Parent so long as no Event of Default shall have occurred and be continuing, the Borrower and its Subsidiaries Agent may (or may make Restricted Payments to any Parent Company to enable it to) make Restricted Payment Payments with respect to any Capital Stock in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation an amount not to exceed 6.00% per annum of the transactions described net Cash proceeds received by or contributed to the Borrower Agent in the PWC Steps Memo and any actions necessary to implement such transactionsinitial public offering of shares of common stock of Party City Holdco Inc. on April 16, 2015;
(viii) repurchase the Borrower Agent may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any (A) Capital Stock (“Treasury Capital Stock”) of Equity Interests deemed the Borrower Agent or any Subsidiary or (B) Capital Stock of any Parent Company, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to occur upon the non-cash exercise Borrower Agent or a Subsidiary) of, Capital Stock of Equity Interests the Borrower Agent or any Parent Company to the extent contributed as a common equity contribution to the capital of the Borrower Agent or any Subsidiary (in each case, other than Disqualified Capital Stock) (“Refunding Capital Stock”) and (ii) declare and pay taxesdividends on the Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower Agent or a Subsidiary) of the Refunding Capital Stock;
(ix) to the Parent extent constituting a Restricted Payment, the Borrower Agent may consummate any transaction permitted by Sections 6.07 (other than Sections 6.07(j) and its Restricted Subsidiaries (t)), Section 6.08 (other than Section 6.08(g)) and Sections 6.11(h); and
(x) the Borrower Agent may make Restricted Payments in an aggregate amount thatnot to exceed, together with (A) the aggregate amount of all other any Restricted Debt Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix6.05(b)(viii), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not 50,000,000 at any time exceed 25% outstanding, so long as no Default or Event of the Consolidated Net Income of the Parent Borrower Default shall have occurred and its Restricted Subsidiaries for the immediately preceding fiscal yearbe continuing.
(b) Such Borrower will The Borrowers and the Subsidiary Guarantors shall not, nor will it shall they permit any of its Restricted Subsidiaries Subsidiary to, make make, directly or indirectly, any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other payment or other distribution (whether in cashCash, securities or other property) on or in respect of principal of or interest on the Senior Notes (or Refinancing Indebtedness in respect thereof) or any Junior 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, retirement, acquisition, cancellation or termination of the Senior Notes (or any Refinancing Indebtedness in respect thereof) or any Junior Indebtedness (collectively, “Restricted IndebtednessDebt Payments”), except:
(i) replacementsthe defeasance, refinancingsredemption, amendmentsrepurchase or other acquisition or retirement of the Senior Notes (or Refinancing Indebtedness in respect thereof) or Junior Indebtedness made by exchange for, supplementsor out of the proceeds of the substantially concurrent incurrence of, modifications, extensions, renewals, restatements or refunding of Restricted Refinancing Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoingpayment, the making so long as no Event of any dividend, payment or other distribution or the consummation Default shall have occurred and be continuing;
(iii) payments of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal interest and payments of interest, fees, expenses and indemnification or similar obligations as and when due in respect of Restricted any Indebtedness when due, and in the case of (other than payments with respect to Subordinated Indebtedness, to the extent not Indebtedness prohibited by the subordination provisions thereof);
(iv) payments with respect to intercompany Indebtedness permitted under Section 6.01, subject to the subordination provisions applicable thereto;
(v) payments in connection with the Existing Debt Refinancing;
(vi) (A) payments of any Senior Notes and/or any Junior Indebtedness in exchange for, or with proceeds of any substantially contemporaneous issuance of Qualified Capital Stock of any Parent Company or the Borrower Agent, and any substantially contemporaneous capital contribution in respect of Qualified Capital Stock of the Borrower Agent, (B) payments of Indebtedness by the conversion of all or any portion thereof into Qualified Capital Stock of any Parent Company or the Borrower Agent and (if applicable).C) payments of interest in respect of Indebtedness in the form of payment-in-kind interest with respect to such Indebtedness permitted under Section 6.01;
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notAgent shall not pay or make, nor will it permit any of its Restricted Subsidiaries todirectly or indirectly, declare or make any Restricted Payment, exceptexcept that:
(i) such Person the Borrower Agent may declare and make Restricted Payments to the extent necessary to permit any Parent Company;
(A) to pay general administrative costs and expenses (including corporate overhead, legal or similar expenses) and franchise fees and taxes and similar fees, taxes and expenses required to maintain the organizational existence of such Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by directors, officers, members of management or employees of any Parent Company, in each case, to the extent attributable to the ownership or operations of any of Holdings, the Borrowers and their Subsidiaries;
(B) to discharge its consolidated tax liabilities of Holdings and its Subsidiaries when and as due, to the extent such liabilities are attributable to the ownership or operations of the Borrower Agent and its Subsidiaries; provided that the amount paid by the Borrower Agent pursuant to this paragraph (B) shall not exceed the tax liabilities that would be due if the Borrower Agent and each Subsidiary were separate corporations filing income and similar tax returns on a consolidated or combined basis with respect the Borrower Agent as the common parent of such affiliated group (calculated at the highest combined applicable federal, state, local and foreign tax rate);
(C) to its Equity Interests pay audit and other accounting and reporting expenses at such Parent Company to the extent relating to the ownership or operations of the Borrowers and their Subsidiaries;
(D) for the payment of insurance premiums to the extent relating to the ownership or operations of the Borrowers and their Subsidiaries;
(E) pay fees and expenses related to debt or equity offerings, investments or acquisitions permitted by this Agreement (whether or not consummated);
(F) to pay the consideration to finance any Investment permitted under Section 6.07 (provided that (x) such Restricted Payments under this clause (a)(i)(F) shall be made substantially concurrently with the closing of such Investment and (y) such Parent Company shall, promptly following the closing thereof, cause all such property acquired to be contributed to the Borrowers or one of their Subsidiaries, or the merger or amalgamation of the Person formed or acquired into the Borrowers or one of their Subsidiaries, in order to consummate such Investment in a manner that causes such Investment to comply with the applicable requirements of Section 6.07 as if undertaken as a direct Investment by such Borrower or such Subsidiary); and
(G) to pay customary salary, bonus and other benefits payable solely to directors, officers, members of management or employees of any Parent Company to the extent such salary, bonuses and other benefits are directly attributable and reasonably allocated to the operations of the Borrowers and their Subsidiaries, in additional shares each case, so long as such Parent Company applies the amount of its Equity Interestsany such Restricted Payment for such purpose;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower Agent may pay (or make Restricted Payments to allow any Parent Company to pay) for the repurchase, redemption, retirement or other acquisition or retirement for value of Equity Interests Capital Stock of the any Parent Borrower (including related stock appreciation rights or similar securities) Company held by any future, present or former employee, director, officer, member of management, employee officer, manager or consultant of the Parent Borrower (or any of its Subsidiaries (Affiliate or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner Immediate Family Member thereof) of any of Parent Company, the foregoing); provided that Borrowers or any Subsidiary;
(A) at in exchange for notes issued pursuant to Section 6.01(o), so long as the time aggregate amount of all cash payments made in respect of such notes, together with the aggregate amount of Restricted Payments made (x) pursuant to clause (D) of this clause (ii) below and (y) pursuant to Section 6.05(a)(iv), does not exceed $15,000,000 in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to the next subsequent Fiscal Year;
(B) in exchange for Capital Stock of any Parent Company;
(C) in exchange for net proceeds of any key-man life insurance policies received during such repurchasefiscal year; or
(D) in exchange for Cash and Cash Equivalents in an amount not to exceed, retirement or other acquisition or retirement for value no Default exists or would result, together with (Bx) the aggregate amount of all cash payments made in respect of notes issued pursuant to Section 6.01(o) and (y) the aggregate amount of Restricted Payments made under pursuant to Section 6.05(a)(iv), $15,000,000 in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to the next subsequent Fiscal Year;
(iii) so long as no Default or Event of Default then exists or would result therefrom, the Borrower Agent may make additional Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower Agent elects to apply to this clause (viii)(A) and (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower Agent elects to apply to this clause (iii)(B);
(iv) the Borrower Agent may make Restricted Payments to any Parent Company to enable such Parent Company to make Cash payments in any fiscal year does lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of such Parent Company in an amount not exceed to exceed, together with (x) $10,000,000 (the “Yearly Limit”aggregate amount of all cash payments made in respect of notes issued pursuant to Section 6.01(o) plus and (y) the aggregate amount of all Restricted Payments made pursuant to Section 6.05(a)(ii)(D), $15,000,000 in any Fiscal Year, which, if not used in any Fiscal Year, may be carried forward to the next subsequent Fiscal Year;
(v) the Borrower Agent may repurchase Capital Stock upon exercise of options or warrants if such Capital Stock represents all or a portion of the Yearly Limit from each exercise price of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the options or warrants as part of a “Carryover Amountcashless” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal yearexercise;
(vi) the repurchase Borrower Agent may make Restricted Payments the proceeds of Equity Interests which are applied (A) on the Closing Date, solely to effect the consummation of the Parent Borrower that occurs upon Transactions and (B) on and after the cashless exercise of stock optionsClosing Date, warrants or other convertible securities to satisfy any payment obligations owing under the Merger Agreement (as a result of in effect on the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interestsdate hereof);
(vii) such Parent Borrower so long as no Event of Default shall have occurred and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with be continuing, following the consummation of the transactions described first Qualifying IPO, the Borrower Agent may (or may make Restricted Payments to any Parent Company to enable it to) make Restricted Payments with respect to any Capital Stock in an amount of up to 6.0% per annum of the PWC Steps Memo and net Cash proceeds received by or contributed to the Borrower Agent from any actions necessary to implement such transactionsQualifying IPO;
(viii) repurchase the Borrower Agent may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any (A) Capital Stock (“Treasury Capital Stock”) of Equity Interests deemed the Borrower Agent or any Subsidiary or (B) Capital Stock of any Parent Company, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to occur upon the non-cash exercise Borrower Agent or a Subsidiary) of, Capital Stock of Equity Interests the Borrower Agent or any Parent Company to the extent contributed as a common equity contribution to the capital of the Borrower Agent or any Subsidiary (in each case, other than Disqualified Stock) (“Refunding Capital Stock”) and (ii) declare and pay taxesdividends on the Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower Agent or a Subsidiary) of the Refunding Capital Stock;
(ix) to the Parent extent constituting a Restricted Payment, the Borrower Agent may consummate any transaction permitted by Sections 6.07 (other than Sections 6.07(j) and its Restricted Subsidiaries (t)), Section 6.08 (other than Section 6.08(g)) and Sections 6.11(f) and (h); and
(x) the Borrower Agent may make additional Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant not to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as greater of the date of any such Restricted Payment $30,000,000 and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income Total Assets as of the Parent Borrower last day of the last Test Period for which financial statements have been delivered pursuant to Section 5.01 at any time outstanding, so long as no Default or Event of Default shall have occurred and its Restricted Subsidiaries for the immediately preceding fiscal yearbe continuing.
(b) Such Borrower will The Borrowers and the Subsidiary Guarantors shall not, nor will it shall they permit any of its Restricted Subsidiaries Subsidiary to, make make, directly or indirectly, any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other payment or other distribution (whether in cashCash, securities or other property) on or in respect of principal of or interest on the Senior Notes (or Refinancing Indebtedness in respect thereof) or any Junior 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, retirement, acquisition, cancellation or termination of the Senior Notes (or any Refinancing Indebtedness in respect thereof) or any Junior Indebtedness (collectively, “Restricted IndebtednessDebt Payments”), except:
(i) replacementsthe defeasance, refinancingsredemption, amendmentsrepurchase or other acquisition or retirement of the Senior Notes (or Refinancing Indebtedness in respect thereof) or Junior Indebtedness made by exchange for, supplementsor out of the proceeds of the substantially concurrent incurrence of, modifications, extensions, renewals, restatements or refunding of Restricted Refinancing Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoingpayment, the making so long as no Event of any dividend, payment or other distribution or the consummation Default shall have occurred and be continuing;
(iii) payments of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal interest and payments of interest, fees, expenses and indemnification or similar obligations as and when due in respect of Restricted any Indebtedness when due, and in the case of (other than payments with respect to Subordinated Indebtedness, to the extent not Indebtedness prohibited by the subordination provisions thereof thereof); (if applicable).iv) payments with respect to intercompany Indebtedness permitted under Section 6.01, subject to the subordination provisions applicable thereto;
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:: (and provided, however, that the Borrower or any Subsidiary may not during the Senior 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), (vii), (viii), (ix) or (xi) below):
(i) such Person the Borrower may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity InterestsInterests in the Borrower;
(ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithcapital stock;
(iii) to the extent constituting Borrower may make Restricted Payments, not exceeding $5,000,000 from and after the Parent date hereof, 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 Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09the Subsidiaries;
(iv) repurchases by Parent the Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with may pay the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133Closing Date Dividend;
(v) the Parent Borrower may pay for cash dividends in respect of Qualified Borrower Preferred Stock issued pursuant to clauses (b) and (c) of the definition thereof; provided that such dividends in respect of Qualified Borrower Preferred Stock issued pursuant to clause (c) of the definition thereof may only be made after the fiscal year ending December 31, 2016 and only with Excess Cash Flow not otherwise required to be used to prepay Term Loans pursuant to Section 2.11(d)) (without duplication of amounts used pursuant to Section 6.08(a)(vii) or amounts included in the Available Amount and used pursuant to Sections 6.04(s) or 6.08(b)(vii));
(vi) [reserved];
(vii) the Borrower may make payments in respect of the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any Subsidiary using the portion of its Subsidiaries Excess Cash Flow not subject to mandatory prepayment pursuant to Section 2.11(d) (without duplication of amounts used pursuant to Section 6.08(a)(v) or amounts included in the estate, heirs, family members, spouse, former spouse, domestic partner Available Amount and used pursuant to Sections 6.04(s) or former domestic partner of any of 6.08(b)(vii));
(viii) the foregoing)Borrower may make Restricted Payments; provided that if after giving effect to such Restricted Payments (Aand any Indebtedness incurred in connection therewith (but disregarding the proceeds of any such Indebtedness in calculating Unrestricted Domestic Cash) and any related repayment of Indebtedness), the Net Leverage Ratio at the time of the making such payments (the date of the making of such payments, the “RP Date”) would be (1) less than or equal to 2.25 to 1.00, but greater than 2.00 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments would exceed $40,000,000, (2) less than or equal to 2.75 to 1.00, but greater than 2.25 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments would exceed $25,000,000, (3) less than or equal to 3.25 to 1.00 but greater than 2.75 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments would exceed $15,000,000, (4) less than or equal to 4.00 to 1.00 but greater than 3.25 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments would exceed $10,000,000 and (5) greater than 4.00 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments would exceed $5,000,000; provided further that at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under payment pursuant to this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion viii), no Default or Event of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” Default shall have occurred and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxescontinuing;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date respect of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments purchase price adjustment required to be made with under the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134Westfalia Purchase Agreement;
(x) the Parent Borrower may make additional any Restricted Payments; provided that Payments and/or payments or deliveries in shares of common stock (Aor other securities or property following a merger event or other change of the common stock of the Borrower) (xand cash in lieu of fractional shares) as and/or cash required by the terms of, and otherwise perform its obligations under, any Permitted Convertible Indebtedness (including, without limitation, making payments of interest and principal thereon, making payments due upon required repurchase thereof and/or making payments and deliveries due upon conversion thereof);
(xi) the date of Borrower may pay the premium in respect of, and otherwise perform its obligations under, any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or Permitted Bond Hedge Transaction; and
(yxii) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Borrower may make any Restricted Payments made under this clause and/or payments or deliveries in shares of common stock and cash in lieu of fractional shares required by the terms of, and otherwise perform its obligations under, any Permitted Warrant Transactionthe Convertible Notes Indenture (xincluding, without limitation, making payments of interest and principal thereon and/or making deliveries (other than in cash) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower due upon exercise and its Restricted Subsidiaries for the immediately preceding fiscal yearsettlement or terminationconversion thereof).
(b) Such The Borrower will not, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
: (i) replacementsand provided, refinancingshowever, amendmentsthat the Borrower or any Subsidiary may not during the Senior Period make, supplementsor agree to pay or make, modificationsdirectly or indirectly, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments any payment or other distributions 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, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out any Indebtedness pursuant to any of the net proceeds ofclauses (vi), the substantially concurrent sale of Equity Interests (vii) or (ix) (other than Disqualified Equity Interestsas required to comply with its obligations as in effect on the Fifth Amendment Effective Date) below):
(i) payment of Indebtedness created under the Parent Borrower Loan Documents;
(it being understood such amounts will not increase the Available Amount), or (Bii) the conversion payment of regularly scheduled interest and principal payments as and when due in respect of any Restricted Indebtedness to Equity Interests (Indebtedness, other than Disqualified Equity Interests)payments in respect of subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) payments or other distributions on account refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness out of the purchase, redemption, retirement, acquisition, cancellation proceeds of any sale or termination transfer of Restricted the property or assets securing such Indebtedness, ;
(v) payment of or in respect of (A) Indebtedness created under the ABL Loan Documents and (B) Indebtedness or obligations secured by the ABL Security Documents;
(vi) payments of Indebtedness with the Net Proceeds of an issuance of Equity Interests in the Borrower;
(vii) payments of Indebtedness in an aggregate amount not equal to exceed the greater of $25,000,000 and 1% of Consolidated Total AssetsAvailable Amount; provided that (x) (1) at the time of any such payment and after giving effect thereto, (i) no Default or other distribution, no Event of Default shall have occurred and be continuing or would result therefrom or and (2ii) no Default shall exist or would result therefrom on at the date such Person provides notice time of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist and to the incurrence of any Indebtedness in connection therewith (but disregarding the proceeds of any such Indebtedness in calculating Unrestricted Domestic Cash), the Net Leverage Ratio is not greater than 2.00 to 1.00;
(viii) the Borrower may make any payments or result therefrom deliveries in shares of common stock (or other securities or property following a merger event or other change of the common stock of the Borrower) (yand cash in lieu of fractional shares) no Default shall exist or would result therefrom on and/or cash required by the date such Person provides notice terms of, and otherwise perform its obligations under, any Permittedthe Convertible IndebtednessNotes Indenture (including, without limitation, making payments of such payment or distribution interest and such payment or distribution shall be made within 90 days of such noticeprincipal there-on, making payments due upon required repurchase thereofthereon and/or making payments anddeliveries (other than in cash) due upon conversion thereof); and
(viix) payment-in-kind interest with respect to Restricted Indebtedness permitted the purchase of any Permitted Bond Hedge Transaction by this Agreement;the Borrower and the performance of its obligations thereunder.
(viic) payments The Borrower will not, nor will it permit any Subsidiary to, enter into or distributions on account of intercompany Subordinated Indebtedness not prohibited by be party to, or make any payment under, any Synthetic Purchase Agreement unless, in each case except during the terms of this Agreement; and
Senior Period, (viiii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated any Synthetic Purchase Agreement related to any Equity Interests of the Borrower, the payments required to be made by the Borrower are limited to amounts permitted to be paid under Section 6.08(a), (ii) in the case of any Synthetic Purchase Agreement related to any Restricted Indebtedness, the payments required to be made by the Borrower or the Subsidiaries thereunder are limited to the extent not prohibited by amount permitted under Section 6.08(b) and (iii) in the subordination provisions thereof (if applicable)case of any Synthetic Purchase Agreement, the obligations of the Borrower and the Subsidiaries thereunder are subordinated to the Obligations on terms satisfactory to the Required Lenders.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Other than as specified in the first sentence of Section 5.11, neither Holdings nor the Borrower will notwill, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
except that (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries Holdings may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its capital stock payable solely in additional shares of its Equity Interests capital stock, (ii) Subsidiaries may declare and pay dividends ratably according to their interests) and, solely with respect to Subsidiaries organized in Germanytheir capital stock, (iii) Holdings may make other payments Restricted Payments, not exceeding $2,000,000 during any fiscal year, pursuant to and in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning stock option plans or other benefit plans for directors, management or employees of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted PaymentsHoldings, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted the Subsidiaries, including the redemption or purchase of capital stock of Holdings held by Sections 6.03former directors, 6.04management or employees of Holdings, 6.05 the Borrower or 6.09;
any Subsidiary following termination of their employment, (iv) repurchases by Parent the Borrower of partial interests may pay dividends to Holdings at such times and in its Equity Interests for nominal amounts which are required to such amounts, not exceeding $2,000,000 during any fiscal year, as shall be repurchased in connection with the exercise of stock options or warrants necessary to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
Holdings to discharge its permitted liabilities and (v) the Parent Borrower and the Joint Venture Holding Companies may pay for make Restricted Payments to Holdings at such times and in such amounts (but not prior to the repurchase, retirement or other acquisition or retirement for value of Equity Interests fifth anniversary of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member date of management, employee or consultant issuance of the Parent Borrower or any of its Subsidiaries (or the estateCumulative Preferred Stock) as shall be necessary to enable Holdings, heirsafter such fifth anniversary, family membersto pay dividends in cash on such Cumulative Preferred Stock as and when declared and payable, spouseprovided that, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of each Restricted Payments Payment made under in reliance upon this clause (v) in any fiscal year does and after giving pro forma effect to such payment, the Leverage Ratio shall not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior 1.50 to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year1.00, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) Holdings, the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount as and to the extent contemplated by the Recapitalization Agreement and (vii) Holdings may make Restricted Payments on account of the purchase, redemption or repurchase of the Cumulative Preferred Stock with the net proceeds of a substantially concurrent IPO, provided that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist to such purchase, redemption or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect theretorepurchase, no Default shall exist or would result therefrom or (y) no Event of Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment have occurred and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearbe continuing.
(b) Such Neither Holdings nor the Borrower will notwill, nor will it they permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 cancelation or termination of any Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancingsother than (A) payments in respect of the Subordinated Debt and the Junior Subordinated Note prohibited by the subordination provisions thereof, amendments(B) principal payments in respect of the Junior Subordinated Note and (C) cash interest payments in respect of the Junior Subordinated Note unless, supplementsin the case of any such payment specified in this clause (C), modifications, extensions, renewals, restatements at the time of such payment and after giving pro forma effect thereto the Leverage Ratio shall not exceed 1.50 to 1.00 and such payment is due and payable on or refunding after the fifth anniversary of Restricted the date of issuance of the Junior Subordinated Note; (iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Samples: Credit Agreement (SCG Holding Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person the Subsidiaries may declare and make Restricted Payments pay dividends ratably with respect to their Equity Interests, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Qualified Equity Interests;
, (iiiii) Restricted Subsidiaries may declare and pay scheduled dividends payable with respect to their Equity Interests the outstanding shares of Series C Preferred Stock pursuant to the terms thereof in existence on the Effective Date, (provided that if such iv) the Borrower may make Restricted Subsidiary is Payments not wholly-owned exceeding $10,000,000 during any fiscal year pursuant to and in accordance with stock option plans, employment agreements or other benefit plans approved by the Parent Borrower’s board of directors for management, directors, former directors, employees and former employees of the Borrower and the Subsidiaries, (v) if the Borrower or any Subsidiary subsequently becomes an operational national securities exchange under the Exchange Act, the Borrower may redeem the outstanding share of Series D Preferred Stock, (vi) at any time at which the Total Leverage Ratio at such dividends must be made time does not exceed the Covenant Leverage Ratio applicable to that period (each calculated on a Pro Forma Basis) on or after the holders delivery of the financial statements and the certificate of a Financial Officer pursuant to Section 5.01(a) and Section 5.01(c), respectively, for the Borrower’s fiscal year ended December 31, 2006, the Borrower may repurchase, redeem or retire its Equity Interests ratably according in an aggregate amount in any fiscal year not to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning exceed 50% of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay Excess Cash Flow for the repurchaseimmediately preceding fiscal year, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (Ax) at the time of any such repurchasepayment, retirement or other acquisition or retirement for value no Default exists shall have occurred and be continuing or would resultresult therefrom, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior amounts required to 2010be applied to prepay Term Loans pursuant to Section 2.11(d) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus so applied and (z) an amount equal the Borrower has delivered to the cash proceeds from Administrative Agent a certificate of a Financial Officer, together with all relevant financial information reasonably requested by the sale of Equity Interests to directorsAdministrative Agent, officers, members of management, employees or consultants of demonstrating the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price calculation of such Equity Interests;
Excess Cash Flow and (vii) such Parent the Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement additional repurchases, redemptions and in connection with the consummation retirements of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of its Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) not to exceed $25,000,000 during the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes term of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearAgreement.
(b) Such The Borrower will not, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) replacementspayment or prepayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as, refinancingsin the form of payment and when due in respect of any Indebtedness, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Convertible Notes and Additional Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) (A) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness, in each case in exchange for, or out transfer of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135and
(v) payments or other distributions on account of under the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Additional Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Intercompany Loan.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Nasdaq Stock Market Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person each Loan Party and its Subsidiaries may declare and make Restricted Payments pay dividends or other distributions with respect to its Equity Interests common stock payable solely in additional shares of its Equity Interests;
common stock, and, with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock; (ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests Interests; (provided that if such Restricted Subsidiary is not wholly-owned by iii) the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, Company may make other payments Restricted Payments, not exceeding $10,000,00020,000,000 during any fiscal year, pursuant to and in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 equity incentive plans or other benefit plans for management or employees of the German Stock Corporation Act Company and the Subsidiaries and for deceased and terminated employees and present and former directors (AktGincluding from their estates), (iv) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries Company may enter into option, warrant and similar derivative transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with a Permitted Convertible Notes Offering and may settle such transactions in accordance with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENTterms thereof, Page 133
(v) the Parent Borrower Company may declare and pay for the repurchasedividends payable in cash with respect to its capital stock and may make payments, retirement including any sinking fund or other acquisition or retirement for value of Equity Interests similar deposit, on account of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness Equity Interests in the Company or any option, warrant or other right to acquire any Equity Interests in the NewExisting Senior Unsecured Company in an aggregate amount not to exceed $75,000,000125,000,000 during any fiscal year of the Company; provided that, with respect to this clause (v), both immediately before and immediately after giving pro forma effect thereto, (A) no Default or Event of Default shall have occurred and be continuing and (B) Liquidity shall be at least $500,000,000, including Aggregate Availability of at least $400,000,000; (vi) Restricted Payments in respect of Permitted Convertible Notes permitted under Section 6.09(b); (vii) the Company may make Restricted Payments (other than in cash) pursuant to any shareholder rights plan or similar arrangement; (viii) the Company may make other Restricted Payments; provided that, with respect to this clause (viii), both immediately before and immediately after giving pro forma effect thereto, (A) no Default or Event of Default shall have occurred and be continuing, and (B) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such Restricted Payment is to occurLiquidity shall be at least 1.10 to 1.00 (determined on a Pro Forma Basis in respect of the Test Period in effect at such time) and (C) no Level 4 Minimum$500,000,000, including Aggregate Availability Period shall be in effectof at least $400,000,000 and; (ix) upon receipt of requisite approval by the Company’s shareholders of the OfficeMax Merger, Restricted Payments to the holders of preferred stock of the Company (the “Preferred Stockholders”) to redeem up to and including 175,000 shares of preferred stock; and (x) immediately prior to consummation of the OfficeMax Merger, Restricted Payments (A) to the Preferred Stockholders to redeem any refinancing outstanding preferred shares of the Company and (B) to repurchase any outstanding common shares of the Preferred Stockholders such that immediately following consummation of the OfficeMax Merger, the Preferred Stockholders hold less than 5% of the undiluted common stock of the Company. Notwithstanding the foregoing, the Company may purchase, redeem or replacement thereofretire Equity Interests of the Company with (x) having an individual outstanding the net cash proceeds of the sale of its Equity Interests in the Mexican Joint Venture or in Boise Cascade Holdings, L.L.C.; provided that, both immediately before and immediately after giving pro forma effect thereto, (1) no Default or Event of Default shall have occurred and be continuing, (2) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such Restricted Payment is to occur shall be at least 1.00 to 1.00 (determined on a Pro Forma Basis in respect of the Test Period in effect at such time) and (3) no Minimum Aggregate Availability Period shall be in effect or (y) up to 50% of the net cash proceeds resulting from any asset sales, transfers or dispositions under Section 6.05(g) or 6.05(i), provided that, such Restricted Payments are made within six months of the applicable asset sale, transfer or disposition and, both immediately before and immediately after giving pro forma effect thereto, (1) no Default or Event of Default shall have occurred and be continuing, (2) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such Restricted Payment is to occur shall be at least 1.00 to 1.00 (determined on a Pro Forma Basis in respect of the Test Period in effect at such time) and (32) Liquidity shall be at least $500,000,000, including Aggregate Availability of at least $400,000,000.
(b) No Loan Party will, nor will it 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 amount in excess of $25,000,000 (such or interest on any Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(iA) replacementspayment of Indebtedness created under the Loan Documents;
(B) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Subordinated Indebtedness prohibited by the subordination provisions thereof;
(C) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiD) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(AE) payment of Indebtedness owed to the Company or any wholly owned Subsidiary;
(F) payment of Indebtedness owed by non-Loan Parties;
(G) distributions of shares of common stock of the Company, together with cash payments or other distributions in lieu of the issuance of fractional shares, in connection with the conversion settlement of any Permitted Convertible Notes;
(H) payment on account of the purchasetender, redemption, retirement, acquisition, cancellation prepayment or termination repurchase of Restricted Indebtedness, in each case in exchange for, all or out any portion of the net proceeds ofExisting 2013 Notes, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of OMX Existing 2016 Notes and the Parent Borrower (it being understood such amounts will not increase the Available Amountloans referred to in Section 6.01)(p), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that both immediately before and immediately after giving pro forma effect thereto, (xi) (1) at the time no Default or Event of any such payment or other distribution, no Default shall have occurred and be continuing and (ii) Liquidity shall be at least $600,000,000, including Aggregate Availability of at least $400,000,000; and
(I) other payments or would result therefrom distributions in respect of Indebtedness (including, without limitation, any cash conversion settlement or (2) repurchase of any Permitted Convertible Notes); provided that both immediately before and immediately after giving pro forma effect thereto, no Default or Event of Default shall exist or would result therefrom on have occurred and be continuing and either (i) (x) the date such Person provides notice of Fixed Charge Coverage Ratio for the Test Period in effect at the time such payment or distribution and such payment or distribution is to occur shall be made within 90 days at least 1.10 to 1.00 (determined on a Pro Forma Basis in respect of the Test Period in effect at such notice time) and (y) after giving effect theretoAggregate Availability shall be at least $250,000,000 or (ii) Liquidity shall be at least $500,000,000, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;including Aggregate Availability of at least $400,000,000.
(ivc) payments Notwithstanding anything to the contrary contained in this Section 6.09, nothing in this Section 6.09 shall prohibit any Loan Party or other distributions on account any of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) from issuing Permitted Convertible Notes as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness otherwise permitted by under this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Samples: Credit Agreement (Office Depot Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower No Loan Party will not, nor will it permit any of its Restricted Subsidiaries to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (icontingent or otherwise) such Person may declare to do so, except (a) the Borrower and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries Parent may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interestscommon stock, (b) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) so long as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities arise as a result thereof, Subsidiaries of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction may declare and pay dividends ratably to the holders of the exercise price of such their Equity Interests;
, (vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ixc) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments pursuant to and in an aggregate amount that, together accordance with (A) stock option plans or other benefit plans for management or employees of the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereofSubsidiaries, (Bd) so long as no Default exists or would arise as a result thereof, the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereofmay repurchase, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”)redeem, or any other payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account otherwise buy back shares of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, Parent’s common stock in an aggregate amount not to exceed $10,000,000; provided, that, with respect to each of clauses (a) through (d) above, such Person and the greater Persons holding its Equity Interests are in compliance with Section 7-80-606 of $25,000,000 the Colorado Revised Statutes, and 1% (e) so long as no Default exists or would arise as a result thereof, the Borrower may pay cash dividends to the Parent in an amount sufficient to allow the Parent to pay (i) reasonable audit and other accounting expenses incurred in the ordinary course of Consolidated Total Assets; provided that business, (xii) Taxes due and payable by the Parent to any taxing authority and reasonable expenses incurred in connection with preparation of related Tax returns and filings, (1iii) at reasonable and necessary expenses (including professional fees and expenses) incurred by the time Parent in connection with (A) registration, public offerings and exchange listing of equity securities and maintenance of the same, (B) compliance with reporting obligations under, or in connection with compliance with, federal or state securities laws, and (C) indemnification and reimbursement of directors, officers and employees in respect of liabilities relating to their serving in any such payment capacity, or other distributionobligations in respect of director and officer insurance (including premiums therefor), no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account repurchases of the purchase, redemption, retirement, acquisition, cancellation or termination shares of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 Parent’s common stock pursuant to 1.00; CREDIT AGREEMENT, Page 135
clause (vd) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, above in an aggregate amount thatnot to exceed $10,000,000, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (Cv) other reasonable expenses incurred by Parent in the aggregate amount ordinary course of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; andbusiness.
(vie) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, Schedule 2.01 to the extent not prohibited by the subordination provisions thereof (if applicable)Credit Agreement is hereby amended to read as set forth in Exhibit A attached hereto.
Appears in 1 contract
Samples: Credit Agreement (Natural Grocers by Vitamin Cottage, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower Symmetry and the Borrowers will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayment (other than the Effective Date Conversion Rights Payment and the Effective Date Special Dividend), exceptor incur any obligation (contingent or otherwise) to do so, except that:
(i) such Person Symmetry may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests;Interests permitted to be issued hereunder,
(ii) Restricted Subsidiaries any Subsidiary may declare and pay dividends or other distributions with respect to their its capital stock, partnership or membership interests or other similar Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent BorrowerInterests, such dividends must be made ratably to the holders of its Equity Interests ratably according thereof, provided that dividends paid by the US Borrower to their interests) andNovamerican Parent, solely with respect and by Novamerican Parent to Subsidiaries organized in GermanySymmetry, may only be paid at such times and in such amounts as shall be necessary to permit Symmetry (A) to make Restricted Payments permitted to be made by it under clause (iii), (iv), (v) or (vi) below, (B) to make any investment, loan, advance or acquisition permitted to be made by it under Section 6.04 and (C) to discharge its other payments in accordance with domination permitted liabilities when and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;due,
(iii) to the extent constituting Symmetry may make Restricted Payments, not exceeding US$500,000 during any fiscal year of Symmetry, pursuant to and in accordance with stock incentive plans or other benefit plans for management or employees of Symmetry, the Parent Borrower Borrowers and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;the other Subsidiaries,
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with Symmetry may redeem the exercise of stock options or warrants to permit Existing Warrants from the issuance of only whole shares of Equity Interests; CREDIT AGREEMENTregistered holders thereof, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause by Symmetry in connection therewith shall not exceed US$275,000,
(v) in Symmetry may make any fiscal year does dividend or distribution to all holders of its common stock to redeem rights issued pursuant to any stockholder rights plan, “poison pill” or a similar arrangement, provided that the aggregate amount of such dividends and distributions shall not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year750,000, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;and
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries Symmetry may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make other Restricted Payments in an aggregate amount that, together with so long as (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and immediately after giving effect thereto, no Default shall exist has occurred and is continuing or would result therefrom or therefrom, (yB) no Default shall exist or would result therefrom as Excess Availability at the close of business on the date of declaration the most recent Borrowing Base Certificate delivered prior to the making of such Restricted Payment and Payment, determined on a pro forma basis as if such Restricted Payment is had been made within 60 days immediately prior to the date of such declaration certificate, shall have been not less than US$65,000,000 and (BC) if the Total Leverage Ratio ratio of (1) Consolidated EBITDA to (2) Consolidated Fixed Charges, in each case for the period of four consecutive fiscal quarters then most recently ended for which financial statements shall have been delivered under Section 5.01(a) or 5.01(b), shall have been not less than 1.0 to 1.0, determined on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the pro forma basis as if such Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearhad been made during such period.
(b) Such Borrower Symmetry and the Borrowers will not, nor and will it not permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 cancelation or termination of any Restricted Indebtedness, except:
(i) replacementspayments of Indebtedness created under the Loan Documents;
(ii) regularly scheduled interest and principal payments as and when due in respect of any Indebtedness (including, refinancingsin the case of the Intercompany Notes or any other Indebtedness owed by any Canadian Loan Party to a US Loan Party, amendments, supplements, modifications, extensions, renewals, restatements or refunding any such interest payments the payment of Restricted which has been deferred from the original date due);
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii) (Aiv) payments of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) other distributions payments in respect of Indebtedness or on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests Indebtedness so long as (other than Disqualified Equity InterestsA) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) immediately after giving effect thereto, the Parent Borrower no Default has occurred and is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments continuing or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereofwould result therefrom, (B) Excess Availability at the aggregate amount close of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after business on the date hereof of the most recent Borrowing Base Certificate delivered prior to the making of each such payment, determined on a pro forma basis as if such payment had been made immediately prior to the date of such certificate, shall have been not less than US$65,000,000 and (C) the aggregate amount ratio of all Investments made by (1) Consolidated EBITDA to (2) Consolidated Fixed Charges, in each case for the Parent Borrower and its Restricted Subsidiaries pursuant to period of four consecutive fiscal quarters then most recently ended for which financial statements shall have been delivered under Section 6.04(y)(i5.01(a) after the date hereofor 5.01(b), shall have been not exceed the Available Amount; provided that (x) less than 1.0 to 1.0, determined on a pro forma basis as of the date of if such payment or distribution had been made during such period and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such had been a scheduled principal payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Long-Term Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(i) each Restricted Subsidiary may make Restricted Payments to the Borrower or to any Restricted Subsidiary (and, in the case of a Restricted Payment by a Restricted Subsidiary that is not a Wholly Owned Subsidiary of the Borrower, to the Borrower or any other Restricted Subsidiary and to each other owner of Equity Interests of such Person Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(ii) the Borrower and each Restricted Subsidiary may declare and make Restricted Payments with respect to its Equity Interests dividend payments or other distributions payable solely in additional shares the Equity Interests of its such Person; provided that in the case of any such Restricted Payment by a Restricted Subsidiary that is not a Wholly Owned Subsidiary of the Borrower, such Restricted Payment is made to the Borrower, any Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(iiiii) Restricted Subsidiaries may declare Payments made in connection with or in order to consummate the Transactions and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by otherwise repurchase the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 common stock of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses Borrower through tender offers or open market purchases in connection therewith;
(iii) an amount not to exceed $285,000,000 in the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09aggregate;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required in the Borrower or any Restricted Subsidiary deemed to be repurchased occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price or withholding taxes payable in connection with the exercise of stock such options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133warrants;
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year[reserved];
(vi) payments for the repurchase of Equity Interests of the Parent Borrower that occurs upon held by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) for the cashless exercise purpose of making payments of withholding tax on the vesting of restricted stock optionsunits or deferred stock units, warrants or other convertible securities as a result in an amount not to exceed the sum of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests(x) $20,000,000 in any fiscal year and (y) unused amounts permitted pursuant to Section 6.07(a)(iii);
(vii) such Parent in addition to the foregoing Restricted Payments, the Borrower and its Subsidiaries may make additional Restricted Payments in an aggregate amount, together with the aggregate amount of (1) prepayments, redemptions, purchases, defeasances and other payments in respect of the Junior Financing made pursuant to Section 6.07(b)(iv) and (2) loans and advances made pursuant to Section 6.04(l) in lieu of Restricted Payments permitted by this clause (vii), not to exceed the sum of (A) the Initial Restricted Payment Amount plus (B) the Available Amount that is Not Otherwise Applied plus (C) the Available Equity Amount that is Not Otherwise Applied; provided that, (x) the Total Net Leverage Ratio shall not exceed 2.50:1.00 as of such time determined on a Pro Forma Basis and (y) with respect to any Restricted Payment (A) not made in connection with a Limited Condition Acquisition, no Default or Event of Default has occurred or is continuing at the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or time of consummation of such Restricted Payment and (B) made in connection with a Limited Condition Acquisition, no Default or Event of Default shall exist at the Vion time of execution of the definitive documentation governing such Limited Condition Acquisition as contemplated by the Vion Acquisition Agreement and (other than in connection with any Restricted Payment made in connection with a Limited Condition Acquisition and is financed solely with the proceeds of any Incremental Facility or Incremental Equivalent Debt) no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred or be continuing at the time of consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactionsLimited Condition Acquisition;
(viii) repurchase redemptions in whole or in part of any of its Equity Interests deemed to occur upon the non-cash exercise for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to pay taxesthe Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby;
(ix) the Parent Borrower and its other Restricted Subsidiaries may make Payments; provided that after giving effect to such Restricted Payments in an aggregate amount thatPayment on a Pro Forma Basis, together with (A) the aggregate amount Total Leverage Ratio is less than or equal to 1.50:1.00 as of all other Restricted Payments made by the Parent Borrower such time and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) to the aggregate amount extent such Investment (x) constitutes a Limited Condition Acquisition, no Default or Event of all Investments made by Default is occurring or continuing at the Parent Borrower time of execution of the definitive documentation governing such Limited Condition Acquisition and its Restricted Subsidiaries pursuant to (other than in connection with any Limited Condition Acquisition financed solely with the proceeds of any Incremental Facility or Incremental Equivalent Debt) and no Event of Default under Section 6.04(y)(i7.01(a), (b), (h) after or (i) shall have occurred or be continuing at the date hereof time of consummation of such Limited Condition Acquisition) and (y) does not constitute a Limited Condition Acquisition, no Default or Event of Default is occurring or continuing at the time of consummation of such Investment and (C) the aggregate outstanding principal amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto Term Facility is no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more greater than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix)200,000,000; CREDIT AGREEMENT, Page 134and
(x) the Parent Borrower may to make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist dividends or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) distributions in respect of a Equity Interests and restricted stock units of the Borrower in an amount not to exceed $5,000,000 (grossed up for any applicable withholding) in any fiscal year, which amount, if not used, may be carried forward to subsequent future years; provided that, for the avoidance of doubt, with respect to the fiscal year (including the Restricted Payment in questionending December 31, 2017, this Section 6.07(a)(x) shall not at any time exceed 25% of only apply to dividends or distributions made on or after the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearEffective Date.
(b) Such The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, make or agree to pay or make, directly or indirectly, any payment in respect of any purchaseprepayment, redemption, retirement, acquisition, cancellation purchase or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other payment or other distribution redemption (whether in cash, securities or other property) of or in respect of principal or any interest, fees or other amounts of any Junior Financing (which, solely for purposes of this Section 6.07(b), shall exclude any Junior Financing having an aggregate principal amount less than $10,000,000 (any Junior Financing in excess of such aggregate principal amount, “Restricted Junior Financing”)), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of the principal of any Restricted IndebtednessJunior Financing that has a substantially similar effect to any of the foregoing (collectively, a “Repayment”), except:
(i) replacementspayment of regularly scheduled interest, refinancingsprincipal payments and prepayment premiums and any other amounts, amendmentsin each case, supplementsas in the form of payment and when due in respect of any Indebtedness, modificationsother than payments in respect of any Restricted Junior Financing prohibited by the subordination provisions thereof, extensions, renewals, restatements or refunding if any;
(ii) refinancings of Restricted Indebtedness to the extent permitted by Section 6.01;
(iiiii) (A) payments or other distributions on account the conversion of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Junior Financing to Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion any of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments its direct or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenantsindirect parent companies;
(iv) payments Repayments, in respect of Restricted Junior Financing prior to their scheduled maturity in an aggregate amount, together with the aggregate amount of (1) Restricted Payments made pursuant to Section 6.07(a)(vii) and (2) loans and advances made pursuant to Section 6.04(l) in lieu thereof not to exceed the sum of (A) the Initial Restricted Payment Amount, plus (B) the Available Amount that is Not Otherwise Applied plus (C) the Available Equity Amount that is Not Otherwise Applied; provided that, (i) no Default or other distributions on account Event of Default has occurred or is continuing at the time of consummation of such Restricted Payments (provided that solely with respect to any Repayment made in connection with a Limited Condition Acquisition, no Default or Event of Default shall exist at the time of execution of the purchasedefinitive documentation governing such Limited Condition Acquisition and (other than in connection with any Repayment made in connection with a Limited Condition Acquisition and is financed solely with the proceeds of any Incremental Facility or Incremental Equivalent Debt) no Event of Default under Section 7.01(a), redemption(b), retirement, acquisition, cancellation (h) or termination (i) shall have occurred or be continuing at the time of Restricted Indebtedness if, consummation of such Limited Condition Acquisition) and (ii) the Total Leverage Ratio shall not exceed 2.50:1.00 as of such time determined on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135Basis and;
(v) payments so long as no Default or other distributions on account Event of Default has occurred or is continuing (provided that, solely with respect to any Repayment made in connection with a Limited Condition Acquisition, no Default or Event of Default shall exist at the time of execution of the purchasedefinitive documentation governing such Limited Condition Acquisition and (other than in connection with any Repayment made in connection with a Limited Condition Acquisition and is financed solely with the proceeds of any Incremental Facility or Incremental Equivalent Debt) no Event of Default under Section 7.01(a), redemption(b), retirement(h) or (i) shall have occurred or be continuing at the time of consummation of such Limited Condition Acquisition), acquisition, cancellation or termination other Repayments of Junior Financing; provided that after giving effect to such Restricted Indebtedness, in an aggregate amount that, together with Payment (A) the aggregate amount Total Leverage Ratio is equal to or less than 1.50:1.00 as of all other such payments or other distributions made by the Parent Borrower time determined on a Pro Forma Basis and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate outstanding principal amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto Term Facility is no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such noticegreater than $200,000,000; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations Repayments in respect of Restricted Indebtedness when due, and Junior Financings in the case of Subordinated Indebtedness, an amount not to the extent not prohibited by the subordination provisions thereof (if applicable)exceed $5,000,000 in any fiscal year.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent None of the Borrower or any Restricted Subsidiary will not, nor will it permit any of its Restricted Subsidiaries to, declare or make any Restricted Payment, exceptexcept that:
(i) such Person the Borrower may declare and make any Restricted Payments with respect to its Equity Interests payable solely in additional shares Equity Interests permitted hereunder;
(ii) any Restricted Subsidiary may declare and make any Restricted Payments in respect of its Equity Interests, in each case ratably to the holders of such Equity Interests;
(iiiii) Restricted Subsidiaries the Borrower may declare redeem in whole or in part any of its Qualified Equity Interests in exchange for another class of Qualified Equity Interests or rights to acquire its Qualified Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new shares of its Qualified Equity Interests; provided that the terms and pay dividends provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Qualified Equity Interests are at least as favorable to the Lenders as those contained in the Qualified Equity Interests redeemed thereby;
(iv) the Borrower may repurchase Equity Interests upon the exercise of stock options or warrants if such Equity Interests represent all or a portion of the exercise price of such options or warrants;
(v) the Borrower may make cash payments in lieu of the issuance of fractional shares representing insignificant interests in the Borrower in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests in the Borrower;
(vi) so long as no Default or Event of Default has occurred, is continuing or would result therefrom, the Borrower may redeem, acquire, retire or repurchase (including through the issuance of promissory notes by the Borrower or any other Loan Party pursuant to Section 6.01(a)(xvi)) its Equity Interests (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Equity Interests) held by current or former officers, managers, consultants, directors and employees (or their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrowerrespective spouses, such dividends must be made to the holders of its Equity Interests ratably according to their interestsformer spouses, successors, executors, administrators, heirs, legatees or distributees) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation or similar rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement; provided that, except with respect to non-discretionary repurchases, acquisitions, retirements or redemptions pursuant to the terms of any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreement or equity holders’ agreement, the aggregate amount of all cash and Cash Equivalents paid in respect of all such Equity Interests (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Equity Interests) so redeemed, acquired, retired or repurchased in any calendar year does not exceed the sum of (w) $5,000,000 plus (x) all Net Proceeds obtained by the Borrower during such calendar year from the sale of such Equity Interests to other present or former officers, consultants, employees and directors in connection with any permitted by Sections 6.03, 6.04, 6.05 or 6.09compensation and incentive arrangements (that are not treated as Qualifying Equity Proceeds) plus (y) the then available Qualifying Equity Proceeds plus (z) all net cash proceeds obtained from any key-man life insurance policies received during such calendar year;
(ivvii) repurchases by Parent the Borrower of partial interests may make Restricted Payments in its Equity Interests for nominal amounts which are required an amount equal to withholding or similar taxes payable or expected to be repurchased payable by any present or former employee, director, manager or consultant (or their respective Affiliates, estates or immediate family members) in connection with the exercise of stock options and the vesting of restricted stock and may redeem, acquire, retire or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
repurchase (vincluding through deemed repurchases) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of its Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing)from such Persons; provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments all payments made under this clause (vvii) shall not exceed $15,000,000 in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal calendar year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, any Restricted Payment in an amount not in excess of the sum of (A) the Available Amount (provided that, other than with respect to any amounts attributable to clauses (a)(i) and (a)(v) of the definition of “Available Amount”, the Available Amount may only be used for payments pursuant to this clause (viii) if the Borrower, after giving Pro Forma Effect to such Restricted Payment, shall be in Pro Forma Compliance with a Total Leverage Ratio, recomputed as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the Pro Forma Financial Statements), that is no greater than (1) at any time prior to June 30, 2016, 5.00:1.00 and (2) at any time on or after June 30, 2016, 4.50:1.00) and (B) the amount of Qualifying Equity Interests deemed Proceeds, in each case, immediately prior to occur upon the non-cash exercise of Equity Interests to pay taxesmaking such Restricted Payment in reliance on this clause (viii);
(ix) any Restricted Payment made in connection with the Parent Borrower Transactions;
(x) so long as no Event of Default shall have occurred and its be continuing or would result therefrom, any additional Restricted Subsidiaries may make Restricted Payments Payment in an aggregate amount thatamount, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or and other distributions in respect of Junior Financings made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v6.08(b)(vii) after below, not to exceed $100,000,000 in the date hereofaggregate since the Closing Date; and
(xi) any additional Restricted Payments, shall not exceed the Available Amount; provided that so long as (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (yA) no Default shall exist or would result therefrom on the date Event of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (yB) after giving effect theretoPro Forma Effect to such Restricted Payment, the Parent Borrower is shall be in compliance, on a Pro Forma BasisCompliance with a First Lien Secured Leverage Ratio, with the Financial Covenants;
(iv) payments or other distributions on account recomputed as of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account last day of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.08(a)(ix5.01(a) after or 5.01(b) (or, prior to the date hereof and (C) delivery of any such financial statements, the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as last day of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and last fiscal quarter included in the case of Subordinated IndebtednessPro Forma Financial Statements), to the extent not prohibited by the subordination provisions thereof (if applicable)that is no greater than 3.00:1.00.
Appears in 1 contract
Samples: Credit Agreement (Costar Group Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, exceptor incur any obligation (contingent or otherwise) to do so, except (and provided, however, that the Borrower or any Subsidiary may not during the Senior 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), (vii), (viii), (ix) or (xi) below)::
(i) such Person the Borrower may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares of its common Equity InterestsInterests in the Borrower;
(ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithcapital stock;
(iii) to the extent constituting Borrower may make Restricted Payments, not exceeding $5,000,000 from and after the Parent date hereof, 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 Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09the Subsidiaries;
(iv) repurchases by Parent the Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with may pay the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133Closing Date Dividend;
(v) the Parent Borrower may pay for cash dividends in respect of Qualified Borrower Preferred Stock issued pursuant to clauses (b) and (c) of the definition thereof; provided that such dividends in respect of Qualified Borrower Preferred Stock issued pursuant to clause (c) of the definition thereof may only be made after the fiscal year ending December 31, 2016 and only with Excess Cash Flow not otherwise required to be used to prepay Term Loans pursuant to Section 2.11(d)) (without duplication of amounts used pursuant to Section 6.08(a)(vii) or amounts included in the Available Amount and used pursuant to Sections 6.04(s) or 6.08(b)(vii));
(vi) [reserved];
(vii) the Borrower may make payments in respect of the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any Subsidiary using the portion of its Subsidiaries Excess Cash Flow not subject to mandatory prepayment pursuant to Section 2.11(d) (without duplication of amounts used pursuant to Section 6.08(a)(v) or amounts included in the estate, heirs, family members, spouse, former spouse, domestic partner Available Amount and used pursuant to Sections 6.04(s) or former domestic partner of any of 6.08(b)(vii));
(viii) the foregoing)Borrower may make Restricted Payments; provided that if after giving effect to such Restricted Payments (Aand any Indebtedness incurred in connection therewith (but disregarding the proceeds of any such Indebtedness in calculating Unrestricted Domestic Cash) and any related repayment of Indebtedness), the Net Leverage Ratio at the time of the making such payments (the date of the making of such payments, the “RP Date”) would be (1) less than or equal to 2.25 to 1.00, but greater than 2.00 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments would exceed $40,000,000, (2) less than or equal to 2.75 to 1.00, but greater than 2.25 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments would exceed $25,000,000, (3) less than or equal to 3.25 to 1.00 but greater than 2.75 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments would exceed $15,000,000, (4) less than or equal to 4.00 to 1.00 but greater than 3.25 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments would exceed $10,000,000 and (5) greater than 4.00 to 1.00, such Restricted Payments shall not be permitted if the aggregate amount of such Restricted Payments would exceed $5,000,000; provided further that at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under payment pursuant to this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion viii), no Default or Event of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” Default shall have occurred and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxescontinuing;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date respect of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments purchase price adjustment required to be made with under the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134Westfalia Purchase Agreement;
(x) the Parent Borrower may make additional any Restricted Payments; provided that Payments and/or payments or deliveries in shares of common stock (Aor other securities or property following a merger event or other change of the common stock of the Borrower) (xand cash in lieu of fractional shares) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited and/or cash required by the terms of this Agreement; and
of, and otherwise perform its obligations under, any Permitted Convertible Indebtedness (viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoingincluding, the without limitation, making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of interest and principal thereon, making payments due upon required repurchase thereof and/or making payments and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicabledeliveries due upon conversion thereof).;
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower Loan Parties will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
except as long as no Default or Event of Default exists or would arise therefrom (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Loan Parties may declare and pay dividends with respect to their Equity Interests capital stock payable solely in additional shares of or warrants to purchase their common stock, (provided that if such Restricted Subsidiary is not wholly-owned ii) the Loan Parties may declare splits or reclassifications of their stock into additional or other shares of their common stock, and (iii) the Borrower may pay cash dividends or otherwise transfer funds to the Parent for operating expenses incurred in the normal course of business by the Parent Borrower, such dividends must be made to or paid by the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 Parent on behalf of the German Stock Corporation Act Borrower (AktG) as well as distribute profits including all payroll and compensate losses in connection therewith;
(iii) to benefits costs for all Subsidiaries of the extent constituting Restricted PaymentsParent, the Parent Borrower telephone, travel, rent and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03other occupancy costs, 6.04professional expenses, 6.05 or 6.09;
including consulting, audit, accounting and legal expenses, corporate insurance expenses, data processing costs and other operating expenses), (iv) repurchases by the Parent Borrower of partial interests may pay cash dividends in its Equity Interests for nominal amounts which are required an amount not to be repurchased exceed $30,000,000 in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENTeach Fiscal Year, Page 133
and (v) only if the Parent Borrower may pay for the repurchasePayment Conditions are then satisfied, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment repurchase its capital stock and/or declare and after giving effect theretopay other cash dividends to its shareholders, no Default shall exist or would result therefrom or and (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income Subsidiaries of the Parent Borrower may declare and pay cash dividends to the Parent or to any other Loan Party which is its Restricted Subsidiaries for the immediately preceding fiscal yearstockholder.
(b) Such Borrower The Loan Parties will not, nor and will it not permit any of its Restricted 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, interest on, or fees or other charges with respect to any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted IndebtednessIndebtedness (other than the Obligations), exceptexcept as long as no Event of Default has occurred and is continuing or would result from such payments:
(i) replacementspayment of regularly scheduled interest, refinancingsfees, amendments, supplements, modifications, extensions, renewals, restatements or refunding and charges and principal payments as and when due in respect of Restricted any other Indebtedness permitted hereunder; and
(ii) refinancings of Indebtedness to the extent permitted by Section 6.01;.
(iic) (A) payments or other distributions on account Notwithstanding any of the purchase, redemption, retirement, acquisition, cancellation restrictions or termination of Restricted Indebtedness, limitations described in each case in exchange for, Sections 6.06(a) or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount6.06(b), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, and its Subsidiaries may repurchase its respective capital stock and equity interests and/or declare and pay cash dividends to its shareholders and members solely with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made proceeds received and tax benefits realized by the Parent Borrower and its Restricted Subsidiaries or such Subsidiary resulting from or related to the exercise of stock options granted pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made stock option plans adopted by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereofor such Subsidiary, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied which options are exercised in accordance with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations conditions described in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)such plans.
Appears in 1 contract
Samples: Credit Agreement (Stage Stores Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) such Person may declare each of Holdings and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrower may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interests) common stock, and, solely with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock;
(ii) Subsidiaries organized in Germany, may make other payments in accordance declare and pay dividends ratably with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithrespect to their Equity Interests;
(iii) to so long as no Default or Event of Default has occurred and is continuing or would arise after giving effect (including pro forma effect) thereto the extent constituting Restricted Payments, the Parent Borrower and its Restricted any Subsidiaries may enter into transactions expressly permitted repurchase Equity Interests from any current or former officer, director, employee or consultant to comply with Tax withholding obligations relating to Taxes payable by Sections 6.03, 6.04, 6.05 such Person upon the grant or 6.09award of such Equity Interests (or upon vesting thereof) in an aggregate amount not exceeding $100,000 in any fiscal year of the Borrower;
(iv) repurchases by Parent so long as no Default or Event of Default has occurred and is then continuing or would arise after giving effect (including pro forma effect) thereto, the Borrower of partial interests in its and any Subsidiaries may purchase Equity Interests for nominal amounts which are required to be repurchased from present or former officers, directors or employees of the Borrower or any Subsidiary upon the death, disability, retirement or termination of employment or service of such officer, director or employee, in connection with an aggregate amount not exceeding $100,000 in any fiscal year of the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133Borrower;
(v) the Parent Borrower may pay for the repurchasemake Restricted Payments, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) exceeding $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for 100,000 during any fiscal year, the Yearly Limit applicable pursuant to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) and in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale accordance with stock option plans or other benefit plans for management or employees of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of Holdings and its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal yearSubsidiaries;
(vi) the repurchase payments of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock optionsseverance, warrants or change-in-control payments, retention bonuses and other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment similar required payments in connection with the Rothsay Permitted Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets5,000,000; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;and
(ivvii) payments or the Borrower may make other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, Payments in an aggregate amount that, together with (A) not to exceed $500,000 in any fiscal year subject to the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as satisfaction of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such noticePayment Condition.; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make any Restricted Payment, except:
(i) such Person the Borrower and each Restricted Subsidiary may declare and make Restricted Payments with respect to its the Borrower or any Restricted Subsidiary, provided that in the case of any such Restricted Payment by a Restricted Subsidiary that is not a Wholly Owned Subsidiary, such Restricted Payment is made to the Borrower, any Restricted Subsidiary and to each other owner of Equity Interests payable solely in additional shares of its such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(ii) the Borrower and each Restricted Subsidiaries Subsidiary may declare and pay dividends make dividend payments or other distributions payable solely in the Equity Interests of such Person;
(iii) Restricted Payments made to consummate the Transactions and Restricted Payments constituting any part of a Permitted Reorganization;
(iv) repurchases of Equity Interests in any Holdings Parent, Holdings, the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price or withholding taxes payable in connection with the exercise of such options or warrants or other incentive interests;
(v) Restricted Payments to Holdings or any Holdings Parent, which Holdings or such Holdings Parent may use to redeem, acquire, retire, repurchase or settle its Equity Interests (or any options, warrants, restricted stock or stock appreciation rights or similar securities issued with respect to any such Equity Interests) or Indebtedness or to service Indebtedness incurred by Holdings or any Holdings Parent to finance the redemption, acquisition, retirement, repurchase or settlement of such Equity Interest or Indebtedness, held directly or indirectly by current or former officers, managers, consultants, members of the Board of Directors, employees or independent contractors (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of Holdings or any Holdings Parent, the Borrower and the Restricted Subsidiaries, upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement in an aggregate amount after the Effective Date together with the aggregate amount of loans and advances to Holdings or any Holdings Parent made pursuant to Section 6.04(l) in lieu of Restricted Payments permitted by this clause (v) not to exceed $20,000,000 in any calendar year with unused amounts in any calendar year being carried over to the next two succeeding calendar years (without giving effect to the following proviso); provided that such amount in any calendar year may be increased by (1) an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower, Holdings (or by any Holdings Parent and contributed to the Borrower) or the Restricted Subsidiaries after the Effective Date, or (2) the amount of any bona fide cash bonuses otherwise payable to members of the Board of Directors, consultants, officers, employees, managers or independent contractors of Holdings or any Holdings Parent, the Borrower or any Restricted Subsidiary that are foregone in return for the receipt of Equity Interests, the fair market value of which is equal to or less than the amount of such cash bonuses, which, if not used in any year, may be carried forward to any subsequent fiscal year; provided further that cancellation of Indebtedness owing to Holdings, the Borrower or any Restricted Subsidiary from members of the Board of Directors, consultants, officers, employees, managers or independent contractors (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of Holdings or any Holdings Parent, the Borrower or any Restricted Subsidiary in connection with a repurchase of Equity Interests of Holdings or any direct or indirect parent of the Borrower or the Borrower will not be deemed to constitute a Restricted Payment for purposes of this Section 6.07 or any other provisions of this Agreement.
(vi) other Restricted Payments made by the Borrower; provided that, on the date of declaration of such Restricted Payments, (x) no Specified Event of Default shall have occurred and be continuing or would result therefrom and (y) on a Pro Forma Basis, the Total Net Leverage Ratio is equal to or less than 2.25 to 1.00 for the most recently ended Test Period;
(vii) the Borrower may make Restricted Payments in cash to Holdings or any Holdings Parent:
(A) as distributions by the Borrower or any Restricted Subsidiary to Holdings or any Holdings Parent in amounts required for Holdings or any Holdings Parent to pay, with respect to any taxable period in which the Borrower and/or any of the Restricted Subsidiaries is a member of a consolidated, combined, unitary or similar tax group (a “Tax Group”) of which Holdings or such Holdings Parent is the common parent, an amount equal to the U.S. federal, state and local and non-U.S. income Taxes of such Tax Group that are attributable to the income, revenue, receipts, gross receipts, gross profits, capital or margin of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount of such taxes that the Borrower and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with the Borrower as the corporate common parent of such stand-alone Tax Group (collectively, “Tax Distributions”);
(B) the proceeds of which shall be used by Holdings or a direct or indirect parent of the Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent of Holdings or such direct or indirect parent of the Borrower to pay)
(1) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses payable to third parties) that are reasonable and customary and incurred in the ordinary course of business, (2) any reasonable and customary indemnification claims made by members of the Board of Directors or officers, employees, directors, managers, consultants or independent contractors of Holdings or any direct or indirect parent of the Borrower attributable to the ownership or operations of the Borrower and the Restricted Subsidiaries, (3) fees and expenses (x) due and payable by Holdings, the Borrower and the Restricted Subsidiaries and (y) otherwise permitted to be paid by Holdings, the Borrower and any Restricted Subsidiaries under this Agreement, (4) [reserved], (5) to satisfy indemnity and other obligations under acquisition or other agreements and (6) amounts that would otherwise be permitted to be paid pursuant to Section 5.15;
(C) the proceeds of which shall be used by Holdings or a direct or indirect parent of the Borrower to pay franchise and similar Taxes, and other fees and expenses, required to maintain its corporate or other legal existence;
(D) to finance any Investment made by Holdings or a direct or indirect parent of the Borrower that, if made by the Borrower, would be permitted to be made pursuant to Section 6.04; provided that if (A) such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must Payment shall be made substantially concurrently with the closing of such Investment and (B) Holdings or such direct or indirect parent of the Borrower shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests but not including any loans or advances made pursuant to Section 6.04(b)) to be contributed to the holders Borrower or its Restricted Subsidiaries or (2) the Person formed or acquired to merge into or amalgamate or consolidate with the Borrower or any of the Restricted Subsidiaries to the extent such merger, amalgamation or consolidation is permitted in Section 6.03) in order to consummate such Investment, in each case in accordance with the requirements of Sections 5.11 and 5.12;
(E) the proceeds of which shall be used to pay (or to make Restricted Payments to allow Holdings or a direct or indirect parent of the Borrower to pay) (1) fees and expenses related to any actual or proposed equity or debt offering not prohibited by this Agreement and (2) advisory, refinancing, transaction and exit fees and expenses attributable to the business of the Borrower and the Restricted Subsidiaries;
(F) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries; and
(G) the proceeds of which shall be used to make payments permitted by clause (b)(iv) and (b)(v) of Section 6.07;
(viii) in addition to the foregoing Restricted Payments, so long as, as of the most recently ended Test Period, the Total Net Leverage Ratio is equal to or less than 3.00 to 1.00, the Borrower may make additional Restricted Payments, in an aggregate amount not to exceed the sum of (A) the Available Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of such Restricted Payment, plus (B) the Available Equity Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of such Restricted Payment; provided that any amounts included in the definition of “Available Amount” may only be used for Restricted Payments so long as no Specified Event of Default shall have occurred and be continuing at the time of declaration of such Restricted Payment;
(ix) redemptions in whole or in part of any of its Equity Interests ratably according for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided, that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interestsinterests as those contained in the Equity Interests redeemed thereby;
(x) andpayments made or expected to be made in respect of withholding or similar Taxes payable by any future, solely present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with respect the exercise of stock options and the vesting of restricted stock and restricted stock units;
(xi) payments to Subsidiaries organized Holdings or any Holdings Parent to permit it to (a) pay cash in Germanylieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition (or other similar Investment) and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(xii) payments made or expected to be made by Holdings, any Holdings Parent, the Borrower or any Restricted Subsidiary in respect of withholding or similar taxes payable upon exercise of Equity Interests by any future, present or former employee, director, officer, manager or consultant (or their respective controlled Affiliates or permitted transferees) and any repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants or required withholding or similar taxes;
(xiii) [Reserved];
(xiv) the declaration and payment of a Restricted Payment to Holdings on account of Holdings’ common stock (or the payment by the Borrower to Holdings or any Holdings Parent) to fund redemptions or share repurchases of such company’s common stock or a payment of dividends on such company’s common stock, in any fiscal year of the Borrower in an amount not to exceed the sum of (x) 7.0% per annum of the net cash proceeds of a public offering of common stock received by or contributed to the Borrower or any Subsidiary Loan Party and (y) 7.0% of the Market Capitalization of Holdings or such Holdings Parent;
(xv) any distributions or payments of Securitization Fees, sales or contributions and other transfers of Securitization Assets and proceeds thereof and purchases of Securitization Assets, in each case in connection with a Qualified Securitization Facility;
(xvi) Restricted Payments in an amount not to exceed the sum of (I) the greater of (A) $55,000,000 and (B) 40% of Consolidated EBITDA for the Test Period then last ended at the time of making such Restricted Payment plus (II) unused amounts available to make prepayments, redemptions, repurchases, defeasances and other payments of Junior Financing pursuant to Section 6.07(b)(iv)(A) (it being understood that the usage of such amounts for Restricted Payments under this clause (xvi) shall reduce the amounts available for prepayments, redemptions, repurchases, defeasances and other payments in accordance with domination and profit and loss pooling agreements respect of Junior Financing under such Section 6.07(b)(iv)(A)) plus (Beherrschungs – und ErgebnisabführungsverträgeIII) within unused amounts available to make Investments pursuant to Section 6.04(bb) (it being understood that the meaning of usage for such amounts for Restricted Payments under this clause (xvi) shall reduce the amount available for Investments under such Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith6.04(bb));
(iiixvii) to the extent constituting Restricted Payments, the Parent Borrower and its the Restricted Subsidiaries may enter into consummate (1) transactions expressly permitted by Sections 6.03, pursuant to Section 6.03 and (2) make Investments permitted under Section 6.04, 6.05 or 6.09;
(ivxviii) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries Subsidiary may make any a Restricted Payment in connection with the Rothsay Acquisition as contemplated acquisition of additional Equity Interests in such Restricted Subsidiary from minority shareholders to the extent such acquisition would have been permitted (and to the extent so permitted shall constitute such Investment) by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation parent company of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries Subsidiary pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount6.04; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134and
(xxix) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year[reserved].
(b) Such The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other payment voluntary prepayment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Junior Financing constituting Material Indebtedness (other than to the extent of any Retained Declined Proceeds applied in compliance with Section 2.11(e)), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted Indebtednesssuch Junior Financing, except:
(i) replacementspayment of regularly scheduled interest and principal payments, mandatory offers to repay, repurchase or redeem, mandatory prepayments of principal premium and interest, and payment of fees, expenses and indemnification obligations, with respect to such Junior Financing, other than payments in respect of any Junior Financing prohibited by the subordination provisions thereof;
(ii) refinancings, amendments, supplements, modificationssubstitutions, extensions, renewalsrestructurings, restatements exchanges or refunding renewals of Restricted Indebtedness to the extent permitted by Section 6.016.01 and fees and expenses in connection therewith;
(iiiii) (A) payments or other distributions on account the conversion of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of any Junior Financing to Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it Borrower, Holdings or any Holdings Parent, and any payment that is intended to prevent any Junior Financing from being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) treated as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding within the foregoing, the making meaning of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving Section 163(i)(1) of the redemption noticeCode;
(iv) so long as on a Pro Forma Basis for the most recently ended Test Period the Total Net Leverage Ratio is less than or equal to 2.50 to 1.00, as applicableprepayments, will not be prohibited ifredemptions, at the date of declaration or notice such dividendrepurchases, payment or defeasances and other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when dueJunior Financing prior to their scheduled maturity in an aggregate amount, not to exceed the sum of (A) an amount at the time of making any such prepayment, redemption, repurchase, defeasance or other payment and in the case of Subordinated Indebtednesstogether with any other prepayments, to the extent not prohibited by the subordination provisions thereof (if applicable).r
Appears in 1 contract
Samples: Credit Agreement (Gogo Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower No Loan Party will not, nor will it permit any of its Restricted Subsidiaries to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (icontingent or otherwise) such Person may declare to do so, except (a) the Borrower and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries Parent may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interestscommon stock, (b) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) so long as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities arise as a result thereof, Subsidiaries of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction may declare and pay dividends ratably to the holders of the exercise price of such their Equity Interests;
, (vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ixc) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments pursuant to and in an aggregate amount that, together accordance with (A) stock option plans or other benefit plans for management or employees of the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereofSubsidiaries, (Bd) so long as no Default exists or would arise as a result thereof, the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereofmay repurchase, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”)redeem, or any other payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account otherwise buy back shares of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, Parent’s common stock in an aggregate amount not to exceed $10,000,000; provided, that, with respect to each of clauses (a) through (d) above, such Person and the greater Persons holding its Equity Interests are in compliance with Section 7-80-606 of $25,000,000 the Colorado Revised Statutes, and 1% (e) so long as no Default exists or would arise as a result thereof, the Borrower may pay cash dividends to the Parent in an amount sufficient to allow the Parent to pay (i) reasonable audit and other accounting expenses incurred in the ordinary course of Consolidated Total Assets; provided that business, (xii) Taxes due and payable by the Parent to any taxing authority and reasonable expenses incurred in connection with preparation of related Tax returns and filings, (1iii) at reasonable and necessary expenses (including professional fees and expenses) incurred by the time Parent in connection with (A) registration, public offerings and exchange listing of equity securities and maintenance of the same, (B) compliance with reporting obligations under, or in connection with compliance with, federal or state securities laws, and (C) indemnification and reimbursement of directors, officers and employees in respect of liabilities relating to their serving in any such payment capacity, or other distributionobligations in respect of director and officer insurance (including premiums therefor), no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account repurchases of the purchase, redemption, retirement, acquisition, cancellation or termination shares of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 Parent’s common stock pursuant to 1.00; CREDIT AGREEMENT, Page 135
clause (vd) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, above in an aggregate amount thatnot to exceed $10,000,000, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (Cv) the aggregate amount of all Investments made other reasonable expenses incurred by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case ordinary course of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)business.
Appears in 1 contract
Samples: Credit Agreement (Natural Grocers by Vitamin Cottage, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person may declare and make Restricted Payments in the case of Holdings, dividends with respect to its Equity Interests common stock payable solely in additional shares of its Equity Interests;
common stock, and, with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock, (ii) Restricted in the case of Holdings, any dividend or distribution to all holders of its common stock to redeem rights issued pursuant to any stockholder rights plan, “poison pill” or a similar arrangement, provided that the aggregate amount of such dividends and distributions shall not exceed $750,000, (iii) the Borrower and the Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests Interests, (provided that if such iv) in the case of Holdings, Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made Payments pursuant to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments and in accordance with domination (A) equity incentive plans or other benefit plans for management or employees of Holdings and profit its Subsidiaries so long as the Negative Covenant Permission Trigger is satisfied and loss pooling agreements (Beherrschungs – und ErgebnisabführungsverträgeB) within the meaning employment agreement, dated as of Section 291 October 1, 2015 and effective as of July 1, 2015, by and among Holdings, the Borrower and X. Xxxxxx Kathwari, as set forth on Exhibit 10.1 of the German Stock Corporation Act Form 8-K publicly filed by Holdings with the SEC on October 2, 2015 (AktG) and any employment agreement replacing such employment agreement, so long as well as distribute profits the terms thereof are commercially reasonable and compensate losses in connection therewith;
(iii) not materially less favorable to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of the other Loan Parties) (v) in the case of Holdings, the Borrower and its Subsidiaries Subsidiaries, any Restricted Payment so long as the Negative Covenant Permission Trigger is satisfied, (or vi) in the estatecase of Holdings, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time Holdings may repurchase Equity Interests issued to current or former employees, officers, directors or managers upon death, disability or termination of any employment of such repurchase, retirement or other acquisition or retirement for value no Default exists or would resultPerson, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Holdings may repurchase Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible or exchangeable securities as if such Equity Interests represents a result portion of the Parent Borrower accepting such optionsexercise, warrants conversion or other convertible securities as satisfaction of the exercise exchange price of such Equity Interests;
thereof, (viiC) such Parent Borrower and its Subsidiaries Holdings may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase repurchases of Equity Interests deemed to occur upon the non-cash exercise withholding of a portion of the Equity Interests granted or awarded to a current or former director, officer, employee, manager or director of such Person, or consultant or advisor (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) to pay taxes;
for the Taxes payable by such Person upon such grant or award (ixor upon the vesting thereof), and (D) the Parent Borrower Holdings may (y) pay cash in lieu of fractional Equity Interests in connection with any dividend and its Restricted Subsidiaries may (z) honor any conversion request by a holder of convertible Indebtedness or convertible Equity Interests and make Restricted Payments cash payments in an aggregate amount thatlieu of fractional shares in connection with any such conversion), together with (A) provided that the aggregate amount of price paid for all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries such repurchased, redeemed, acquired or retired Equity Interests pursuant to this Section 6.08(a)(ix) after the date hereofclause (vi)(A), (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) may not exceed $10,000,000 in any fiscal year, and (vii) in the aggregate amount case of all payments or Holdings, the payment of dividends and distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) within 60 days after the date hereofof declaration thereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on if at the date of declaration of such Restricted Payment and payment, such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes payment would have complied with the other provisions of this Section 6.08(a)(ix6.08(a), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments, refinancingsand mandatory prepayments, amendmentsas and when due in respect of any Indebtedness, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) (A) payments payment of Indebtedness of any Loan Party or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange forSubsidiary to any Loan Party, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness Subsidiary which is not a Loan Party to Equity Interests (any other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount Subsidiary which is not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assetsa Loan Party; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135and
(v) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchasesale or transfer of, redemptionor casualty or condemnation with respect to, retirement, acquisition, cancellation the property or termination of Restricted assets securing such Indebtedness, in an aggregate amount ; provided that, together with (A) Holdings, the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations any payment described in respect of Restricted Indebtedness when due, and in clause (b) above so long as the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Negative Covenant Permission Trigger is satisfied.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
, (x) any Loan Party may make a Permitted Holdings Dividend and (y) so long as no Event of Default shall have occurred and be continuing or would result therefrom (including after giving effect thereto on a pro forma basis), (i) such Person may declare each of Holdings and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrowers may declare and pay dividends with respect to its common stock payable solely in additional shares of its common stock, and, with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock, (ii) Subsidiaries may declare and pay dividends to the Borrowers, (iii) the Loan Parties and their Subsidiaries may make Restricted Payments payable solely in the form of their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made pursuant to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments and in accordance with domination employment agreements, bonus plans, stock option plans, or other benefit plans for existing, new and profit former management, directors, employees and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 consultants of the German Stock Corporation Act (AktG) as well as distribute profits Loan Parties and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Paymentstheir Subsidiaries, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower Holdings and its Subsidiaries may make any other Restricted Payment in connection with the Rothsay Acquisition Payment, so long as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other such Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ixclause (iv) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall during any Fiscal Year does not exceed the Available Amount; provided sum of $5,000,000 plus the Cumulative Retained Excess Cash Flow Amount that (x) as is in effect immediately prior to the time of the date making of any such Restricted Payment and after giving effect thereto no Default (provided that the use of the Cumulative Retained Excess Cash Flow Amount to make Restricted Payments shall exist or would result therefrom or be subject to (yA) no Default shall exist or Event of Default has occurred and is continuing or would result therefrom on be caused by the date of declaration making of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (AB) (x) as of the date of any such Restricted Payment both prior to and after giving effect theretoto such Restricted Payment, no Default the Senior Secured Leverage Ratio shall exist not exceed 3.25:1.00 as of the last day of the most recent Fiscal Quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or would result therefrom or 5.01(b) (or, prior to the delivery of any such financial statements, as of the last Fiscal Quarter included in the financial statements referred to in Section 3.04(a)) and (y) no Default the Borrower Representative shall exist or would result therefrom as have delivered to the Administrative Agent a certificate of a Financial Officer of Holdings, setting forth reasonably detailed calculations demonstrating the satisfaction of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this condition appearing in clause (x) in respect of a fiscal year above) and (including the Restricted Payment in questionv) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower Holdings may enter into, exercise its rights and perform its Restricted Subsidiaries for the immediately preceding fiscal yearobligations under, Permitted Call Spread Swap Agreements.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted under this Agreement, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) payment of intercompany Indebtedness incurred in accordance with Section 6.01;
(iv) refinancings of Indebtedness to the extent permitted by Section 6.01;
(v) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness so long as the proceeds of such sale are sufficient to repay such Indebtedness in full;
(vi) payments made in respect of the sinking fund requirement under the New Markets Tax Credit Financing, so long as (i) after giving effect to such payment, the aggregate amount of all such payments does not exceed the then outstanding principal amount of the Dairyland HP Indebtedness, and (ii) no Default or Event of Default has occurred and is continuing or would be caused by such payment;
(Avii) prepayments or repayments with respect to the Dairyland HP Indebtedness, so long as no Default or Event of Default has occurred and is continuing or would be caused by such payment;
(viii) mandatory prepayments and voluntary repayments of Indebtedness under the ABL Facility to the extent not prohibited by the Intercreditor Agreement;
(ix) issuance of Equity Interests, or making cash payments (in the case of any cash payments in respect of Permitted Convertible Seller Notes, so long as no Default or Event of Default has occurred and is continuing or would be caused by such payment), in connection with or as part of the conversion, redemption, retirement, prepayment or cancellation of any Permitted Convertible Notes;
(x) payment of regularly scheduled interest payments in respect of Permitted Convertible Seller Notes permitted pursuant to clause (i) of Section 6.01(j) hereof, so long as no Default or Event of Default has occurred and is continuing or would be caused by such payment; and
(xi) any other payments in respect of Subordinated Indebtedness, so long as (i) the aggregate amount of all payments made pursuant to this clause (xi) does not exceed the Cumulative Retained Excess Cash Flow Amount that is in effect immediately prior to the time of making such payment, (ii) no Default or Event of Default has occurred and is continuing or would be caused by such payment and (iii) (x) both prior to and after giving effect to such payment, the Senior Secured Leverage Ratio shall not exceed 3.25:1.00 as of the last day of the most recent Fiscal Quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, as of the last Fiscal Quarter included in the financial statements referred to in Section 3.04(a)) and (y) the Borrower Representative shall have delivered to the Administrative Agent a certificate of a Financial Officer of Holdings, setting forth reasonably detailed calculations demonstrating the satisfaction of the condition appearing in clause (x) above; provided, however, that no such payment or distribution shall be made in respect of the ABL Obligations in violation of the Intercreditor Agreement or in respect of any Subordinated Indebtedness in violation of the subordination provisions applicable thereto.
(c) No Loan Party will, nor will it permit any Subsidiary to, make, directly or indirectly, any Specified Earn-Out Payment, unless no Default or Event of Default has occurred and is continuing or would be caused by such Specified Earn-Out Payment.
(d) Notwithstanding the foregoing provisions of this Section 6.08, from the First Amendment Date through the Closing Date Leverage Restoration Date,
(i) no Loan Party will, 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, that otherwise would be permitted under clauses (x) (solely in respect of Permitted Holdings Dividends described in clause (ii) of the definition thereof) or (y)(iv) of Section 6.08(a); and
(ii) no Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distributions 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, retirement, acquisition, cancellation or termination of Restricted any Indebtedness, that otherwise would be permitted under clauses (iv) (other than with respect to any refinancing of the NMTC Financing), (vii) (with respect to prepayments only), (ix) (other than with respect to the issuance of Equity Interests or the making of cash payments, in each case in exchange forcase, or out upon conversion of the net proceeds ofPermitted Convertible Seller Notes), the substantially concurrent sale of Equity Interests and (other than Disqualified Equity Interestsxi) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable6.08(b).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrower may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by its capital stock payable solely in additional shares of its common stock or options, warrants or other rights to purchase common stock of the Parent Borrower, such (ii) Subsidiaries may declare and pay dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination their capital stock and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) the Borrower may make Restricted Payments to repurchase, redeem, retire or otherwise acquire shares of its capital stock, or options or warrants for the extent constituting Restricted Paymentspurchase of shares of its capital stock, held by current or former officers, directors or employees of the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required any Subsidiary pursuant to be repurchased a compensation plan or arrangement in connection with the exercise death, disability or termination of stock options or warrants to permit the issuance employment of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, such officer, member of managementdirector or employee, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) so long as the aggregate amount of Restricted Payments made under all payments pursuant to this clause (viii) in during any fiscal year does not exceed (xA) $10,000,000 (the “Yearly Limit”) 5,000,000 plus (yB) commencing with the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for on or about September 30, 2001, any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries Excess Cash Flow for the immediately preceding fiscal yearyear to the 140 extent that such Excess Cash Flow is not required to be applied to make prepayments of Loans pursuant to Section 2.11(d) and has not previously been applied to Permitted ECF Uses.
(b) Such The Borrower will not, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 cancelation or termination of any Restricted Indebtedness, except:
(i) replacementspayment or prepayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness (and refinancings and repayments of Subordinated Loans pursuant to the following proviso), refinancingsother than payments in respect of any Subordinated Financing prohibited by the subordination provisions thereof; provided that any payment of principal -------- in respect of any Subordinated Financing shall not be permitted, amendmentsother than pursuant to refinancings or repayments, supplementsas the case may be, modificationsof Subordinated Loans with (A) Subordinated Debt or (B) the proceeds of any Subordinated Loan Equity Prepayment Event; provided further, extensions, renewals, restatements that (I) no Default exists -------- ------- at the time of such refinancing or refunding repayment and (II) any such Subordinated Loan Equity Prepayment Event is designated as such by Xxxxx;
(iii) refinancings of Restricted Indebtedness to the extent permitted by Section 6.01;
(iiiv) (A) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness, in each case in exchange for, or out transfer of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135and
(v) payments or other distributions on account repayment of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Existing Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Other than as specified in the first sentence of Section 5.11, neither Holdings nor the Borrower will notwill, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
except that (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries Holdings may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its capital stock payable solely in additional shares of its Equity Interests capital stock, (ii) Subsidiaries may declare and pay dividends ratably according to their interests) and, solely with respect to Subsidiaries organized in Germanytheir capital stock, (iii) Holdings may make other payments Restricted Payments, not exceeding $2,000,000 during any fiscal year, pursuant to and in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning stock option plans or other benefit plans for directors, management or employees of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted PaymentsHoldings, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted the Subsidiaries, including the redemption or purchase of capital stock of Holdings held by Sections 6.03former directors, 6.04management or employees of Holdings, 6.05 the Borrower or 6.09;
any Subsidiary following termination of their employment, (iv) repurchases by Parent the Borrower of partial interests may pay dividends to Holdings at such times and in its Equity Interests for nominal amounts which are required to such amounts, not exceeding $2,000,000 during any fiscal year, as shall be repurchased in connection with the exercise of stock options or warrants necessary to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
Holdings to discharge its permitted liabilities and (v) the Parent Borrower and the Joint Venture Holding Companies may pay for make Restricted Payments to Holdings at such times and in such amounts (but not prior to the repurchase, retirement or other acquisition or retirement for value of Equity Interests fifth anniversary of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member date of management, employee or consultant issuance of the Parent Borrower or any of its Subsidiaries (or the estateCumulative Preferred Stock) as shall be necessary to enable Holdings, heirsafter such fifth anniversary, family membersto pay dividends in cash on such Cumulative Preferred Stock as and when declared and payable, spouseprovided that, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of each Restricted Payments Payment made under in reliance upon this clause (v) in any fiscal year does and after giving pro forma effect to such payment, the Leverage Ratio shall not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior 1.50 to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year1.00, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) Holdings, the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount as and to the extent contemplated by the Recapitalization Agreement and (vii) Holdings may make Restricted Payments on account of the purchase, redemption or repurchase of the Cumulative Preferred Stock with the net proceeds of a substantially concurrent IPO, provided that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist to such purchase, redemption or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect theretorepurchase, no Default shall exist or would result therefrom or (y) no Event of Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment have occurred and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearbe continuing.
(b) Such Neither Holdings nor the Borrower will notwill, nor will it they permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancingsother than (A) payments in respect of the Subordinated Debt and the Junior Subordinated Note prohibited by the subordination provisions thereof, amendments(B) principal payments in respect of the Junior Subordinated Note and (C) cash interest payments in respect of the Junior Subordinated Note unless, supplementsin the case of any such payment specified in this clause (C), modifications, extensions, renewals, restatements at the time of such payment and after giving pro forma effect thereto the Leverage Ratio shall not exceed 1.50 to 1.00 and such payment is due and payable on or refunding after the fifth anniversary of Restricted the date of issuance of the Junior Subordinated Note;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(Av) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation redemption or termination repurchase of Restricted Indebtedness, in each case in exchange for, or out of the Subordinated Debt with the net proceeds of, the of a substantially concurrent sale IPO, provided that
(i) after giving effect to such purchase, redemption or repurchase, no Default or Event of Equity Interests Default shall have occurred and be continuing, (other ii) no more than Disqualified Equity Interests) 35% of the Parent Borrower (it being understood such amounts will not increase aggregate principal amount of the Available Amount)Subordinated Debt issued on or prior to the Effective Date is purchased, redeemed or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
repurchased and (iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distributionpayment, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice net proceeds of such payment or distribution and IPO remaining after such payment and any Restricted Payment made pursuant to clause (a)(vii) of this Section 6.08 are applied to prepay Term Borrowings pursuant to Section 2.11(a) (or, if no such Borrowings are outstanding or distribution shall be made within 90 days the outstanding amount of such notice and (yBorrowings is less than the amount of the required prepayments, then to reduce Revolving Commitments pursuant to Section 2.08(b) after giving effect theretoby an aggregate amount equal to the amount of the required prepayment, or the Parent Borrower is in complianceexcess of such amount over the outstanding Term Borrowings, on a Pro Forma Basis, with as the Financial Covenantscase may be);
(ivvi) payments or other distributions on account in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such noticeany Permitted Receivables Facility; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions repayment of certain Indebtedness of certain Foreign Subsidiaries on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments Effective Date as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and specified in the case first sentence of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Section 5.11.
Appears in 1 contract
Samples: Credit Agreement (Semiconductor Components Industries LLC)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower None of the Company or any Subsidiary will not, nor will it permit any of its Restricted Subsidiaries to, declare or make make, directly or indirectly, any Restricted Payment, exceptor incur any obligation (contingent or otherwise) to do so, except that:
(i) such Person any Subsidiary may declare and pay dividends or make Restricted Payments other distributions with respect to its Equity Interests, in each case ratably to the holders of such Equity Interests (or if not ratably, on a basis more favorable to the Company and the Loan Parties);
(ii) the Company may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Qualified Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithCompany;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries Company may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement purchase, acquire, cancel or other acquisition or retirement retire for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, Company from present or former directoremployees, officerofficers, member of management, employee directors or consultant consultants (or their estates or beneficiaries under their estates) of the Parent Borrower Company or any Subsidiary upon the death, disability, retirement or termination of its Subsidiaries (employment or service of such employees, officers, directors or consultants, or to the estateextent required, heirspursuant to employee benefit plans, family membersemployment agreements, spousestock purchase agreements or stock purchase plans, former spouse, domestic partner or former domestic partner of any of the foregoing)other benefit plans; provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under pursuant to this clause Section 6.08(a)(iii) shall not exceed $15,000,000 in any fiscal year;
(iv) the Company may make cash payments in lieu of the issuance of fractional shares representing insignificant interests in the Company in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests in the Company;
(v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) Company may acquire Equity Interests of the Company upon the exercise of stock options for such Equity Interests of the Company if such Equity Interests represent a portion of the Yearly Limit from each exercise price of such stock options or in connection with tax withholding obligations arising in connection with the exercise of options by, or the vesting of restricted Equity Interests held by, any current or former director, officer or employee of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees Company or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal yearSubsidiaries;
(vi) the repurchase of Company may convert or exchange any Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants Company for or other convertible securities as a result into Qualified Equity Interests of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity InterestsCompany;
(vii) such Parent Borrower so long as no Default shall have occurred and its Subsidiaries be continuing, the Company may on any date make any Restricted Payment Payments in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or an amount not in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation excess of the transactions described in the PWC Steps Memo amount of Qualifying Equity Proceeds available on such date and any actions necessary not previously applied to implement such transactionsSpecified Uses;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) so long as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or therefrom, the Company may on any date make Restricted Payments in an amount equal (2A)$25,000,000 plus (B) no Default shall exist or would result therefrom the Available Amount on such date; provided, however, that at the date such Person provides notice time of the making of such payment or distribution Restricted Payments and such payment or distribution shall be made within 90 days of such notice and (y) immediately after giving effect theretoto such Restricted Payments made in reliance on subclause (viii)(B), the Parent Borrower is in complianceNet Leverage Ratio on such date, calculated on a Pro Forma BasisBasis to give effect to any such Restricted Payment, with the Financial Covenantsis not in excess of 3.00 to 1.00;
(ivix) payments any Subsidiary may repurchase its Equity Interests held by minority shareholders or other interest holders in a Permitted Acquisition or another transaction permitted by Section 6.04(w) or (x) (it being understood that for purposes of Section 6.04, the Borrower shall be deemed the purchaser of such Equity Interests and such repurchase shall constitute an Investment by the Borrower in a Person that is not a Subsidiary in the amount of such purchase unless such Subsidiary becomes a Loan Party in connection with such repurchase);
(x) so long as, at the date of declaration thereof, no Event of Default under clause (a), (b), (h) or (i) of Article VII shall have occurred and be continuing or would result therefrom, the Company may pay dividends and make distributions to, or repurchase or redeem its Equity Interests from, its equity holders in an amount not to exceed $15,000,000 in any fiscal year;
(xi) so long as no Default shall have occurred and be continuing or would result therefrom, the Company may on account of any date make additional Restricted Payments; provided that the purchaseNet Secured Leverage Ratio immediately after giving effect to any such Restricted Payment, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, calculated on a Pro Forma BasisBasis at the time such Restricted Payment is made, the Secured Leverage Ratio is less than 4.00 2.50 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vixii) payment-in-kind interest with respect to the Company may make Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption Payments within 60 days after the date of declaration of such dividendthereof, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, if at the date of declaration or notice of such dividendRestricted Payments, payment or other distribution or redemption such Restricted Payments would have complied with the terms been permitted pursuant to another clause of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicableSection 6.08(a).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Orthofix Entity to, declare or make make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(ia) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Company may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithcommon stock;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(vb) the Parent Borrower Loan Parties may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests declare and make any Restricted Payments described in clauses (i) and (ii) of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount definition of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion ratably to their direct holders of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such their Equity Interests;
(viic) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition so long as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto there exists no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any each such payment or other distribution, no Default shall have occurred Compliant Dividend and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) immediately after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with Subsidiaries of the Financial CovenantsCompany may declare and pay Compliant Dividends ratably to their direct holders of their Equity Interests;
(ivd) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with so long as (A) there exists no Default at the aggregate amount time of all other such payments or other distributions made by the Parent Borrower each Restricted Payment and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) immediately after the date hereofgiving effect thereto, and (B) after giving pro forma effect to the aggregate amount payment of all other any such Restricted Payments made by Payment, (i) the Parent Borrower and its Total Leverage Ratio shall not be more than 2.00 to 1.00, the Company may make any Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof Payment and (Cii) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, Total Leverage Ratio shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect more than 2.50 to Restricted Indebtedness 1.00, any Orthofix Entity may pay any earnout permitted by this AgreementSection 6.01(i);
(viie) payments or distributions on account payment of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) regularly scheduled interest and principal payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations when due in respect of Restricted Indebtedness when due, and in the case of any Subordinated Indebtedness, to other than (i) payments in respect of the extent not Subordinated Indebtedness prohibited by the subordination provisions thereof thereof, (if applicableii) principal and interest payments on Subordinated Indebtedness owed to Persons that are not Orthofix Entities after the occurrence and during the continuance of an Event of Default and (iii) after the occurrence and during the continuance of an Event of Default, payments in respect of Intercompany Loans owed by (x) any one or more Loan Parties to any Non-Loan Party and (y) any Orthofix Entity to any non-Wholly Owned Orthofix Entity;
(f) any Loan Party may make Restricted Payments to a Non-Loan Party to the extent that there are remaining Non-Loan Party Available Funds on the date such Restricted Payment is made;
(g) any Loan Party may make any Restricted Payment constituting a payment on Intercompany Loans to any other Loan Party;
(h) any Non-Loan Party may make a Restricted Payment to another Non-Loan Party or a Loan Party; and
(i) the Company may (i) issue Equity Interests in the Company, (ii) purchase Equity Interests in the Company from present or former officers or employees of any Orthofix entity upon the death, disability or termination of employment of such officer or employee, provided that no Default or Event of Default then exists or would result therefrom and the aggregate amount of payments made under this clause (j)(ii) shall not exceed $1,000,000 during any fiscal year of the Company. First Amended and Restated Credit Agreement (Orthofix)., Page 109
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower Holdings will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
: (i) each Restricted Subsidiary may make Restricted Payments to Holdings or any Restricted Subsidiary, provided that in the case of any such Person Restricted Payment by a Restricted Subsidiary that is not a Wholly Owned Subsidiary, such Restricted Payment is made to Holdings, any Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests; (ii) Holdings and each Restricted Subsidiary may declare and make Restricted Payments with respect to its Equity Interests dividend payments or other distributions payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their the Equity Interests (provided that if of such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
Person; (iii) to Restricted Payments made in connection with the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
Transactions; (iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required in Holdings (or any direct or indirect parent of Holdings), the Borrower or any Restricted Subsidiary deemed to be repurchased occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price or withholding Taxes payable in connection with the exercise of stock such options or warrants to permit the issuance of only whole shares of Equity Interestsor other incentive interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower Restricted Payments to Holdings, which Holdings may pay for the repurchaseuse to redeem, retirement acquire, retire, repurchase or other acquisition or retirement for value of settle its Equity Interests of the Parent Borrower (including related or any options, warrants, restricted stock or stock appreciation rights or similar securitiessecurities issued with respect to any such Equity Interests) or Indebtedness or to service Indebtedness incurred by Holdings or any direct or indirect parent companies of Holdings to finance the redemption, acquisition, retirement, repurchase or settlement of such Equity Interest or Indebtedness (or make Restricted Payments to allow any of Holdings’ direct or indirect parent companies to so redeem, retire, acquire or repurchase their Equity Interests or their Indebtedness or to service Indebtedness incurred by Holdings to finance the redemption, acquisition, retirement, repurchase or settlement of such Equity Interests or Indebtedness or to service Indebtedness incurred to finance the redemption, retirement, acquisition or repurchase of such Equity Interests or Indebtedness), held directly or indirectly by any future, present current or former directorofficers, officermanagers, member of managementconsultants, employee or consultant members of the Parent Borrower Board of Directors, employees or any of its Subsidiaries independent contractors (or the estatetheir respective spouses, former spouses, successors, executors, administrators, heirs, family memberslegatees or distributees) of Holdings (or any direct or indirect parent thereof), spousethe Borrower and itsthe Restricted Subsidiaries, former spouseupon the death, domestic partner disability, retirement or former domestic partner termination of any of the foregoing); provided that (A) at the time employment of any such repurchasePerson or otherwise in accordance with any stock option or stock appreciation rights plan, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees director and/or employee stock ownership or consultants of the Parent Borrower incentive plan, stock subscription plan, employment termination agreement or of its Subsidiaries (any other employment agreements or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments equity holders’ agreement in an aggregate amount that, after the Effective Date together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).-146- [EMEA_ACTIVE 302040156_13]
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrower may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interests) common stock, and, solely with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock;
(ii) Subsidiaries organized in Germany, may make other payments in accordance declare and pay dividends ratably with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithrespect to their Equity Interests;
(iii) to the extent constituting Restricted Paymentsconsistent with past practice, the Parent Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;Subsidiaries; and
(iv) repurchases consistent with past practice and subject to any increases approved by Parent the board of directors of the Borrower, the Borrower of partial interests in may declare and pay cash dividends with respect to its Equity Interests for nominal amounts which so long as no Event of Default shall have occurred and be continuing or shall result therefrom after giving pro forma effect thereto; provided, that if such cash dividends are required to funded with Indebtedness permitted hereunder, the Borrower shall be repurchased in connection compliance with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) financial covenants set forth in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the Section 6.12 both before and immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (yincluding giving effect on a pro forma basis) no Default shall exist or would result therefrom on to the date of declaration payment of such Restricted Payment dividends and such Restricted Payment is made within 60 days the incurrence of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearIndebtedness.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted under Section 6.01, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than (x) payments in respect of Restricted Subordinated Indebtedness prohibited by the subordination provisions thereof and (y) payments in respect of Permitted Convertible Notes;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;; and
(iiiv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness to the extent such sale or transfer is permitted by the terms of Section 6.05.; and
(Av) with respect to any Permitted Convertible Notes, (x) the Borrower shall be permitted to make regularly scheduled non-default interest, coupon payments or other distributions on account additional interest expressly required by the terms thereof, (y) the Borrower may convert or exchange such Permitted Convertible Notes for any Equity Interests of the purchase, redemption, retirement, acquisition, cancellation or termination Borrower (together with cash in lieu of Restricted Indebtedness, any fractional interest in each case in exchange for, or out any unit of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified such Equity Interests) pursuant to the terms of such Permitted Convertible Notes and (z) so long as at the Parent Borrower time thereof and immediately after giving effect (it being understood such amounts will not increase the Available Amount), including on a pro forma basis) thereto (1) no Default or Event of Default exists or would result therefrom and (B2) the Borrower is in compliance (on a pro forma basis) with the financial covenants contained in Section 6.12, the Borrower may repurchase, retire, redeem, acquire, cancel, terminate or defease such Permitted Convertible Notes pursuant to its terms (including, without limitation, the payment of cash in lieu of stock for the principal amount and/or conversion premium associated with such Permitted Convertible Notes, upon conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iiisuch Permitted Convertible Notes) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate principal amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assetsoriginal principal amount thereof, plus interest; provided that (x) (1) at the time Borrower shall not use the proceeds of any such payment or other distributionLoans for any payment, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect theretorepurchase, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchaseretirement, redemption, retirement, acquisition, cancellation cancellation, termination or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to defeasance permitted under this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower Company will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to make, directly or indirectly, any Restricted Payment, exceptor incur any obligation (contingent or otherwise) to do so, except that the Company or any Subsidiary may:
(i) such Person may declare and make Restricted Payments with respect to its Equity Interests dividend payments or other distributions payable solely in additional shares of its Equity Interestscommon stock or in options, warrants, or other rights to purchase common stock;
(ii) Restricted purchase, redeem or otherwise acquire shares of its common stock or warrants or options to acquire any such shares from officers, directors and employees in connection with the termination of their relationships with the Company and the Subsidiaries may for consideration not exceeding $100,000 in the aggregate in any calendar year;
(iii) in the case of a Subsidiary, declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made and other distributions ratably to the holders of its Equity Interests ratably according to their interests) Interests; and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower make payments not to exceed $250,000 in the aggregate to holders of partial interests its Series B-1 Preferred Shares, Series C-1 Preferred Shares or Series C-2 Preferred Shares in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise lieu of stock options or warrants to permit the issuance of only whole fractional shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearcapital stock.
(b) Such Borrower The Company will not, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 cancelation or termination of any Restricted Indebtedness, except:
(i) replacementspayment of the Obligations;
(ii) payment of scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancingsother than payments in respect of the Subordinated Notes, amendments, supplements, modifications, extensions, renewals, restatements the Series B Notes (as defined in the Securities Purchase Agreement) or refunding other subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Restricted Indebtedness to the extent the Indebtedness resulting therefrom is permitted by Section 6.01;
(iiiv) (A) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness, in each case in exchange for, or out transfer of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135and
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant which correspond to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments on the Industrial Revenue Bonds.
(c) Neither the Company nor any Subsidiary shall enter into or be party to, or make any payment under, any Synthetic Purchase Agreement, except that the Company may enter into any Synthetic Purchase Agreement related to any Equity Interest of interest, fees, expenses and indemnification the Company or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)a Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Labone Inc/)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person the Subsidiaries may declare and make Restricted Payments pay dividends ratably with respect to their Equity Interests, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Qualified Equity Interests;
, (iiiii) Restricted Subsidiaries may declare and pay scheduled dividends payable with respect to their Equity Interests the outstanding shares of Series C Preferred Stock pursuant to the terms thereof in existence on the Effective Date, (provided that if such iv) the Borrower may make Restricted Subsidiary is Payments not wholly-owned exceeding $10,000,000 during any fiscal year pursuant to and in accordance with stock option plans, employment agreements or other benefit plans approved by the Parent Borrower’s board of directors for management, such dividends must be made directors, former directors, employees and former employees of the Borrower and the Subsidiaries, (v) if the Borrower or any Subsidiary subsequently becomes an operational national securities exchange under the Exchange Act, the Borrower may redeem the outstanding share of Series D Preferred Stock, (vi) on or after the delivery of the financial statements and the certificate of a Financial Officer pursuant to Section 5.01(a) and Section 5.01(c), respectively, for the holders of Borrower’s fiscal year ended December 31, 2006, the Borrower may repurchase, redeem or retire its Equity Interests ratably according in an aggregate amount in any fiscal year not to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning exceed 50% of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay Excess Cash Flow for the repurchaseimmediately preceding fiscal year, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (Ax) at the time of any such repurchasepayment, retirement or other acquisition or retirement for value no Default exists shall have occurred and be continuing or would resultresult therefrom, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior amounts required to 2010be applied to prepay Term Loans pursuant to Section 2.11(d) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus so applied and (z) an amount equal the Borrower has delivered to the cash proceeds from Administrative Agent a certificate of a Financial Officer, together with all relevant financial information reasonably requested by the sale of Equity Interests to directorsAdministrative Agent, officers, members of management, employees or consultants of demonstrating the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price calculation of such Equity Interests;
Excess Cash Flow and (vii) such Parent the Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement additional repurchases, redemptions and in connection with the consummation retirements of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of its Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) not to exceed $25,000,000 during the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes term of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearAgreement.
(b) Such The Borrower will not, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) replacementspayment or prepayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as, refinancingsin the form of payment and when due in respect of any Indebtedness, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Convertible Notes and Additional Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) (A) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness, in each case in exchange for, or out transfer of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135and
(v) payments or other distributions on account of under the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Additional Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Intercompany Loan.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Nasdaq Stock Market Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries to, declare or make 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) such Person any wholly-owned Restricted Subsidiary may make Restricted Payments to the Borrower or any Restricted Subsidiary;
(ii) the Borrower may declare and make Restricted Payments with respect to its on any class of Equity Interests of the Borrower payable solely in additional shares the form of its Equity Interests;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Qualified Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithBorrower;
(iii) (a) any non-wholly owned Restricted Subsidiary of the Borrower may declare and pay cash dividends, share premiums and other distributions to its equity holders generally, or redeem shares of its equity holders generally, so long as the extent constituting Restricted Payments, the Parent Borrower and or its Restricted Subsidiary which owns the equity interests in the Restricted Subsidiary paying such dividend, premium or distribution (or redeeming such shares) receives at least its proportional share thereof (based upon its relative holding of the equity interests in such Restricted Subsidiary and taking into account the relative preferences, if any, of the various classes of equity interest of such Restricted Subsidiary) and (b) Corporate Express B.V. may repurchase or redeem the shares of its shareholders that are not Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09in an amount not to exceed $2,000,000;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments (a) not exceeding $10,000,000 in an the aggregate amount during any fiscal year, pursuant to and in accordance with equity incentive plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and for deceased and terminated employees and present and former directors (including from their estates) and (b) in accordance with the Acquisition Agreement on account of equity awards made by the Target on or prior to the Acquisition Effective Date;
(v) the Borrower may enter into option, warrant and similar derivative transactions in connection with a Permitted Convertible Notes Offering and may settle such transactions in accordance with the terms thereof;
(vi) Restricted Payments in respect of Permitted Convertible Notes permitted under Section 6.07(b);
(vii) the Borrower may declare and pay dividends payable in cash with respect to its capital stock not to exceed $0.15 per share of stock during any fiscal quarter of the Borrower; provided that, together no Event of Default shall have occurred and be continuing when any such dividend is declared;
(viii) the Borrower may make Restricted Payments (other than in cash) pursuant to any shareholder rights plan or similar arrangement;
(ix) the Borrower or any Restricted Subsidiary may make Restricted Payments to consummate the Transactions in accordance with the Acquisition Agreement;
(x) any Restricted Subsidiary may make Restricted Payments consisting of the Permitted Restructuring Transactions;
(xi) so long as (A) the aggregate amount no Event of all other Restricted Payments made by the Parent Borrower Default shall have occurred and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, be continuing or would result therefrom and (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment both before and after giving effect thereto on a Pro Forma Basis, the Senior Secured Net Leverage Ratio does not exceed 2.00:1.00, the Borrower may make Restricted Payments in an aggregate amount not to exceed an amount equal to the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this Section 6.07(a)(xi); and
(xii) so long as no (A) Event of Default shall exist have occurred and be continuing or would result therefrom or and (yB) no Default shall exist or would result therefrom both before and after giving effect thereto on a Pro Forma Basis, the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix)Senior Secured Net Leverage Ratio does not exceed 1.50:1.00, in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make or offer to make (or give any payment notice in respect of thereof) any purchasevoluntary or optional payment, redemptionprepayment, retirementrepurchase or redemption of, acquisitionor voluntarily or optionally defease, cancellation or termination of otherwise satisfy prior to the scheduled maturity thereof in any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes manner (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other payment or other distribution (whether in cash, securities or other property), including pursuant any sinking fund or similar deposit), on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted IndebtednessIndebtedness (including, for the avoidance of doubt, any cash payments pursuant to the Permitted Convertible Notes), or segregate funds for any such voluntary or optional payment, prepayment, repurchase, redemption or defeasance, except:
(i) replacementsany payment, refinancingsprepayment, amendmentsrepurchase, supplementsredemption, modifications, extensions, renewals, restatements defeasance or refunding refinancing of Restricted such Indebtedness to with the extent permitted by Section 6.01proceeds of Permitted Refinancing Indebtedness;
(ii) (A) payments payment of Indebtedness owed to the Borrower or other distributions on account any wholly-owned Restricted Subsidiary; provided that, if such Indebtedness is owed by a Loan Party to a Restricted Subsidiary that is not a Loan Party, no Event of the purchase, redemption, retirement, acquisition, cancellation Default shall have occurred and be continuing or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)would result therefrom;
(iii) payments or other distributions on account payment of the purchaseIndebtedness owed by any Restricted Subsidiary that is not a Loan Party;
(iv) payment, prepayment, redemption, retirementpurchase, acquisitiondefeasance or other satisfaction of Indebtedness outstanding under (i) the 2018 Notes, cancellation or termination of Restricted Indebtedness(ii) the 7.35% debentures due 2016 issued by Boise Cascade Corporation and (iii) the revenue bonds listed on Schedule 6.01, in an aggregate amount not each case, on or after the date that is six months prior to exceed the greater maturity date (as then in effect) applicable to such notes, debentures or revenue bonds, as applicable;
(v) payment of $25,000,000 Indebtedness under revolving and 1% other lines of Consolidated Total Assets; provided credit that have been entered into in the ordinary course of business;
(xvi) so long as (1A) at the time no Event of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (yB) both before and after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, thereto on a Pro Forma Basis, the Senior Secured Net Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENTdoes not exceed 2.00:100, Page 135
(v) payments the Borrower or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted Indebtedness, Subsidiary may prepay Restricted Indebtedness in an aggregate amount thatnot to exceed an amount equal to the portion, together with if any, of the Available Amount on such date that the Borrower elects to apply to this Section 6.07(b)(vi);
(vii) so long as (A) the aggregate amount no Event of all other such payments Default shall have occurred and be continuing or other distributions made by the Parent Borrower would result therefrom and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution both before and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on a Pro Forma Basis, the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Senior Secured Net Leverage Ratio does not exceed 1.50:1.00, the Borrower may prepay Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this AgreementIndebtedness; and
(viii) payments the Refinancing Transactions.
(c) Notwithstanding anything to the contrary contained in this Section 6.07, nothing in this Section 6.07 shall prohibit the Borrower from issuing Permitted Convertible Notes as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness otherwise permitted by under this Agreement. Notwithstanding .
(d) Nothing in Section 6.07(b) shall be construed to allow the foregoing, the making Borrower or any of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may to make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of any payment on Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not which is otherwise prohibited by the express terms of any subordination provisions thereof (if applicable)or intercreditor agreement such Restricted Indebtedness is subject to.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNone of the Holding Companies or the Borrowers will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries may declare and pay dividends or make distributions ratably with respect to their Equity Interests capital stock or membership interests, (provided that if such Restricted Subsidiary is not wholly-owned by ii) the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, BC Borrower may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) exceeding $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for 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 Yearly Limit applicable BC Borrower and the BC Subsidiaries, (iii) the BC Borrower and the Timber Borrower may make distributions to the previous BC Holdings and Timber Holdings, respectively, at such times and in such amounts, not exceeding $5,000,000 during any fiscal years year, as shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase permit each of Equity Interests deemed BC Holdings and Timber Holdings to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and discharge its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereofpermitted liabilities, (Biv) if at the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment time thereof and after giving effect thereto no Default shall exist has occurred and is continuing, the Timber Borrower may distribute to Timber Holdings, and Timber Holdings may distribute, any Excess Timber Consideration (excluding any Excess Timber Consideration consisting of cash that is transferred to or would result therefrom invested in BC Holdings, the BC Borrower or any BC Subsidiary for the purpose of funding any redemption or repurchase of Senior Unsecured Debt or Subordinated Debt pursuant to clause (yv) no Default shall exist or would result therefrom on of paragraph (b) of this Section), (v) each Holding Company may redeem the date of declaration Equity Interests of such Restricted Payment Holding Company, and may make distributions to FPH so that FPH may make such Restricted Payment is made within 60 days redemptions of such declaration; provided further that solely for purposes Equity Interests of this Section 6.08(a)(ix)FPH, in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENTeach case from former members of management, Page 134
(x) the Parent former employees, or former directors of Loan Parties, and each Borrower may make additional Restricted Payments; provided distributions to its Holding Company as necessary to fund such redemptions, PROVIDED that the aggregate amount applied for all such purposes shall not exceed $3,000,000 during any fiscal year, (vi) the Holding Companies and the Borrowers may pay (by distribution or otherwise) management fees to Madison Dearborn of up to $1,000,000 in the aggregate in any fiscal year, (vii) distributions by the Borrowers to the Holding Companies to pay out-of-pocket expenses for directors' indemnities, (viii) the Timber Borrower may distribute to Timber Holdings, and Timber Holdings may distribute, any amount of the Net Proceeds received in respect of a Timberland Prepayment Event that is required to be used to prepay Tranche B Term Borrowings pursuant to Section 2.11, PROVIDED that (A) (x) as of the date of any amount so distributed is immediately reinvested in BC Holdings, and invested by BC Holdings in the BC Borrower and thereupon promptly used for such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration purpose and (B) if such distribution and reinvestment is made pursuant to procedures satisfactory to the Total Leverage Ratio Administrative Agent, (ix) the Timber Borrower may distribute to Timber Holdings, and Timber Holdings may distribute, any Equity Interests of BC Holdings acquired by the Timber Borrower or any Timber Subsidiary pursuant to clause (xiv) of Section 6.04(b), (x) each Borrower may make distributions to the Holding Companies, and each Holding Company may in turn make distributions to FPH, (A) not exceeding $500,000 in the aggregate during any fiscal year, at such times as shall be necessary to permit FPH to discharge its corporate maintenance obligations and (B) not exceeding $500,000 in the aggregate during any fiscal year, at such times as shall be necessary to permit FPH to discharge its obligations related to its portion of common expenses shared with any of the Holding Companies or the Borrowers, (xi) each Borrower may make distributions to the Holding Companies, and each Holding Company may in turn make distributions to FPH, to permit FPH to pay on the Effective Date one-time fees and out-of pocket expenses incurred in connection with the Acquisition consistent with the use of proceeds approved by the Lenders prior to the Effective Date and (xii) for so long as BC Holdings is a pass-through or disregarded entity for United States Federal income tax purposes, the BC Borrower may make distributions to BC Holdings, and BC Holdings shall in turn be permitted, to make Tax Distributions in respect of any taxable year of BC Holdings equal to the product of (A) the amount of taxable income allocated to the Members for such taxable year, less the amount of taxable loss allocated to the Members for all prior taxable years (except to the extent such taxable losses have previously been taken into account under this provision), times (B) the highest aggregate marginal statutory Federal, state and local income tax rate (determined taking into account the deductibility of state and local income taxes for Federal income tax purposes) to which any of the direct or indirect Members of BC Holdings who is an individual is subject for such year; and BC Holdings shall be permitted to make such Tax Distributions pursuant to this clause (xii) on a Pro Forma Basis is greater than 4.50 to 1.00 or quarterly basis during such taxable year based on the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then best estimate of the chief financial officer of BC Holdings of the amounts specified in clauses (A) and (B) above; PROVIDED that if the aggregate amount of Restricted Payments the estimated Tax Distributions made under this clause (x) in respect any taxable year of a fiscal BC Holdings exceeds the actual maximum amount of Tax Distributions for that year as finally determined, the amount of any Tax Distributions in the succeeding taxable year (including the Restricted Payment in questionor, if necessary, any subsequent taxable years) shall not at any time exceed 25% be reduced by the amount of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearsuch excess.
(b) Such Borrower will notNone of the Holding Companies or the Borrowers will, nor will it either Borrower permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 cancelation or termination of any Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of interest and principal payments as and when due in respect of any Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) (A) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness, in each case in exchange for, transfer or out involuntary condemnation of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135and
(v) payments or other distributions on account of if at the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution time thereof and after giving effect thereto no Default has occurred and is continuing, the BC Borrower may redeem or repurchase Senior Unsecured Debt or Subordinated Debt for cash consideration; PROVIDED that (A) at the time of and after giving effect to any such redemption or repurchase, the aggregate amount applied for such purposes shall exist not exceed the aggregate amount of Excess Timber Consideration consisting of cash that has been transferred to or result therefrom invested in BC Holdings, the BC Borrower and the BC Subsidiaries in accordance with this Agreement for the purpose of funding such redemptions and repurchases, (B) any Senior Unsecured Debt or Subordinated Debt so redeemed or repurchased shall be retired and cancelled and (yC) no Default the BC Borrower shall exist notify the Administrative Agent of any such redemption or would result therefrom on repurchase, setting forth the date amount applied for such Person provides notice purpose and a description of the method of funding such redemption or repurchase, prior to the time of such payment redemption or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)repurchase.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make 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) such Person the Borrower may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity InterestsInterests in the Borrower;
(ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithcapital stock;
(iii) to the extent constituting Borrower may make Restricted Payments, not exceeding $5,000,000 from and after the Parent date hereof, 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 Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09the Subsidiaries;
(iv) repurchases by Parent the Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with may pay the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133Closing Date Dividend;
(v) the Parent Borrower may pay for cash dividends in respect of Qualified Borrower Preferred Stock issued pursuant to clauses (b) and (c) of the definition thereof; provided that such dividends in respect of Qualified Borrower Preferred Stock issued pursuant to clause (c) of the definition thereof may only be made after the fiscal year ending December 31, 2016 and only with Excess Cash Flow not otherwise required to be used to prepay Term Loans pursuant to Section 2.11(d)) (without duplication of amounts used pursuant to Section 6.08(a)(vii) or amounts included in the Available Amount and used pursuant to Sections 6.04(s) or 6.08(b)(vii));
(vi) [reserved];
(vii) the Borrower may make payments in respect of the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any Subsidiary using the portion of its Subsidiaries Excess Cash Flow not subject to mandatory prepayment pursuant to Section 2.11(d) (without duplication of amounts used pursuant to Section 6.08(a)(v) or amounts included in the estate, heirs, family members, spouse, former spouse, domestic partner Available Amount and used pursuant to Sections 6.04(s) or former domestic partner of any of 6.08(b)(vii));
(viii) the foregoing)Borrower may make Restricted Payments; provided that (Ax) if after giving effect to such Restricted Payments (and any Indebtedness incurred in connection therewith (but disregarding the proceeds of any such Indebtedness in calculating Unrestricted Domestic Cash) and any related repayment of Indebtedness), the Net Leverage Ratio at the time of any the making such repurchasepayments (the date of the making of such payments, retirement the “RP Date”) would be (1) less than or other acquisition or retirement for value no Default exists or would resultequal to 2.25 to 1.00, (B) but greater than 2.00 to 1.00, the aggregate amount of Restricted Payments made under pursuant to this clause (vviii) in any fiscal year does not exceed during the period from the date 12 months prior to the RP Date through (xand including) $10,000,000 the RP Date (such period, the “Yearly LimitRP Period”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that $40,000,000, (x2) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist less than or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant equal to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 2.75 to 1.00, then but greater than 2.25 to 1.00, the aggregate amount of Restricted Payments made under pursuant to this clause (xviii) in respect of a fiscal year (including during the Restricted Payment in question) RP Period shall not exceed $25,000,000, (3) less than or equal to 3.25 to 1.00 but greater than 2.75 to 1.00, the aggregate amount of Restricted Payments made pursuant to this clause (viii) during the RP Period shall not exceed $15,000,000 and (4) greater than 3.25 to 1.00, the aggregate amount of Restricted Payments made pursuant to this clause (viii) during the RP Period shall not exceed $10,000,000; provided further that at the time of any time exceed 25% payment pursuant to this clause (viii), no Default or Event of the Consolidated Net Income of the Parent Borrower Default shall have occurred and its Restricted Subsidiaries for the immediately preceding fiscal yearbe continuing.
(b) Such The Borrower will not, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) payment of secured Indebtedness out of the proceeds of any sale or transfer of the property or assets securing such Indebtedness;
(v) payment of or in respect of (A) Indebtedness created under the ABL Loan Documents and (B) Indebtedness or obligations secured by the ABL Security Documents;
(vi) payments or other distributions on account of Indebtedness with the purchase, redemption, retirement, acquisition, cancellation or termination Net Proceeds of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale an issuance of Equity Interests in the Borrower; and
(other than Disqualified Equity Interestsvii) payments of the Parent Borrower (it being understood such amounts will not increase Indebtedness in an amount equal to the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment and after giving effect thereto, (i) no Default or other distribution, no Event of Default shall have occurred and be continuing or would result therefrom or and (2ii) no Default shall exist or would result therefrom on at the date such Person provides notice time of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or and to the incurrence of any Indebtedness in connection therewith (y) no Default shall exist or would result therefrom on but disregarding the date proceeds of any such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; andIndebtedness in calculating Unrestricted Domestic Cash), the Net Leverage Ratio is not greater than 2.00 to 1.00.
(vic) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
The 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 unless (viii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated any Synthetic Purchase Agreement related to any Equity Interests of the Borrower, the payments required to be made by the Borrower are limited to amounts permitted to be paid under Section 6.08(a), (ii) in the case of any Synthetic Purchase Agreement related to any Restricted Indebtedness, the payments required to be made by the Borrower or the Subsidiaries thereunder are limited to the extent not prohibited by amount permitted under Section 6.08(b) and (iii) in the subordination provisions thereof (if applicable)case of any Synthetic Purchase Agreement, the obligations of the Borrower and the Subsidiaries thereunder are subordinated to the Obligations on terms satisfactory to the Required Lenders.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(i) such Person each Subsidiary may declare and make Restricted Payments with respect to the Borrower and to its other Subsidiaries; provided that in the case of any such Restricted Payment by a Subsidiary that is not a Wholly Owned Subsidiary of the Borrower, such Restricted Payment is made to the Borrower and to any other Subsidiary and to each other owner of Equity Interests payable solely in additional shares of its such Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(ii) Restricted Subsidiaries the Borrower and each Subsidiary may declare and pay dividends with respect to their make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of such Person; provided that if in the case of any such Restricted Payment by a Subsidiary that is not wholly-owned by a Wholly Owned Subsidiary of the Parent Borrower, such dividends must be Restricted Payment is made to the holders Borrower and to any other Subsidiary and to each other owner of its Equity Interests ratably according to of such Subsidiary based on their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 relative ownership interests of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithrelevant class of Equity Interests;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required in the Borrower or any Subsidiary deemed to be repurchased occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price or withholding taxes payable in connection with the exercise of stock such options or warrants;
(iv) Restricted Payments to Holdings which Holdings may use to redeem, acquire, retire, repurchase or settle its Equity Interests (or any options or warrants or stock appreciation rights issued with respect to permit the issuance any of only whole shares of such Equity Interests) (or make Restricted Payments to allow any of Holdings’ direct or indirect parent companies to so redeem, retire, acquire or repurchase their Equity Interests) held by current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of Holdings or any direct or indirect parent thereof (only to the extent attributable to the Borrower), the Borrower and the Subsidiaries, upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement in an aggregate amount after the Effective Date, together with the aggregate amount of loans and advances to Holdings made pursuant to Section 6.04(l) in lieu of Restricted Payments permitted by this clause (v), not to exceed $10,000,000 in any calendar year with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $15,000,000 any calendar year (without giving effect to the following proviso); CREDIT AGREEMENT, Page 133provided that such amount in any calendar year may be increased by an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or its Subsidiaries (or by Holdings and contributed to Borrower) after the Effective Date;
(v) the Parent Borrower and the Subsidiaries may pay for make Restricted Payments in cash to Holdings and any Intermediate Parent:
(A) to the repurchase, retirement or other acquisition or retirement for value of Equity Interests extent Holdings is required to make any payments under Section 4.01(b) of the Holdings LLC Agreement;
(B) the proceeds of which shall be used by Holdings or any Intermediate Parent Borrower to pay (or to make Restricted Payments to allow any direct or indirect parent of Holdings to pay) (1) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including related stock appreciation rights administrative, legal, accounting and similar expenses payable to third parties) that are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount, together with the aggregate amount of loans and advances to Holdings made pursuant to Section 6.04(l) in lieu of Restricted Payments permitted by this clause (a)(vii)(B), not to exceed $1,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or similar securitiesofficers of Holdings (or any parent thereof) held by any future, present attributable to the ownership or former director, officer, member of management, employee or consultant operations of the Parent Borrower and the Subsidiaries, (2) fees and expenses (x) due and payable by the Borrower or any of its the Subsidiaries and (y) otherwise permitted to be paid by the Borrower or such Subsidiary under this Agreement and (3) so long as no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing or would result therefrom, any management, monitoring, consulting and advisory fees payable to the Investors on or after the Effective Date in an aggregate amount not to exceed $2,500,000 in any fiscal year;
(C) the proceeds of which shall be used by Holdings or any Intermediate Parent to pay (or the estateto make Restricted Payments to allow any direct or indirect parent of Holdings to pay) franchise and similar Taxes, heirsand other fees and expenses, family members, spouse, former spouse, domestic partner or former domestic partner of required to maintain its corporate existence;
(D) to finance any of the foregoing)Investment permitted to be made pursuant to Section 6.04; provided that (A) at such Restricted Payment shall be made substantially concurrently with the time closing of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, Investment and (B) Holdings or any Intermediate Parent shall, immediately following the aggregate amount of Restricted Payments made under this clause closing thereof, cause (v1) in any fiscal year does not exceed all property acquired (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (whether assets or Equity Interests but not including any fiscal year ending prior loans or advances made pursuant to 2010Section 6.04(b)) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to be contributed to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its the Subsidiaries or (2) the Person formed or acquired to merge into or consolidate with the estate, heirs, family members, spouse Borrower or former spouse of any of the foregoingSubsidiaries (to the extent such merger or consolidation is permitted in Section 6.03) in order to consummate such fiscal yearInvestment, in each case in accordance with the requirements of Sections 5.11 and 5.12; and
(E) the proceeds of which shall be used by Holdings or any Intermediate Parent to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any unsuccessful equity or debt offering permitted by this Agreement so long as attributable to the Borrower and the Subsidiaries;
(vi) in addition to the repurchase foregoing Restricted Payments and so long as (1) no Default or Event of Equity Interests Default shall have occurred and be continuing or would result therefrom and (2) the Borrower shall be in compliance with the Financial Performance Covenant on a Pro Forma Basis as of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result end of the most recent Test Period (regardless of whether such Financial Performance Covenant is applicable at such time), the Borrower may make additional Restricted Payments to any Intermediate Parent Borrower accepting such optionsand Holdings, warrants or other convertible securities as satisfaction of in an aggregate amount not to exceed the exercise price of such Equity InterestsAvailable Amount;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment redemptions in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement whole or in connection part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Vion Acquisition Lenders and the Issuing Banks in all respects material to their interests as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described those contained in the PWC Steps Memo and any actions necessary to implement such transactionsEquity Interests redeemed thereby;
(viii) repurchase so long as no Event of Equity Interests deemed Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments to occur upon the non-cash exercise of Equity Interests Holdings:
(A) to provide funds that are used by CWH to pay taxesamounts required to be paid by CWH under the Tax Receivable Agreement;
(B) to provide funds that are used by Holdings and/or CWH to (1) pay Public Company Expenses, (2) reimburse expenses of CWH to the extent required by the Holdings LLC Agreement and (3) make indemnification payments to the extent required by the Holdings LLC Agreement;
(C) of up to $30,000,000 during any fiscal year to provide funds that are used by Holdings to pay regular quarterly dividends ratably to its unitholders (including CWH) with unused amounts in any calendar year being carried over to the succeeding calendar year; provided that the funds received by CWH are used to pay regular quarterly dividends to its shareholders; and
(D) Restricted Payments to Holdings that are used for “Cash Settlements” pursuant to the Holdings LLC Agreement; and
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount so long as no Event of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist have occurred and be continuing or would result therefrom or (y) no Default shall exist or would result therefrom on therefrom, the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) Payments to any Intermediate Parent and Holdings in an aggregate amount, for all such Restricted Payments made on or after the Third Amendment Effective Date, not to exceed the greater of (x) as of the date of any such Restricted Payment $20,000,000 and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 257.0% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries EBITDA for the immediately preceding fiscal yearmost recently ended Test Period.
(b) Such The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries other 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 any purchase, redemption, retirement, acquisition, cancellation principal of or termination of interest on any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Subordinated Indebtedness, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) replacementspayment of regularly scheduled interest and principal payments as, refinancingsin the form of payment and when due in respect of any Indebtedness, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted any Subordinated Indebtedness prohibited by the subordination provisions thereof;
(ii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiii) (A) payments or other distributions on account the conversion of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of any Subordinated Indebtedness to Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), Holdings or (B) the conversion any of its direct or indirect parent companies or any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);Intermediate Parent; and
(iiiiv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) so long as (1) at the time no Default or Event of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or and (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution Borrower shall be made within 90 days of such notice and (y) after giving effect thereto, in compliance with the Parent Borrower is in compliance, Financial Performance Covenant on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account Basis as of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account end of the purchasemost recent Test Period (regardless of whether such Financial Performance Covenant is applicable at such time), redemptionprepayments, retirementredemptions, acquisitionpurchases, cancellation or termination defeasances and other payments in respect of Restricted Indebtedness, any Subordinated Indebtedness prior to their scheduled maturity in an aggregate amount thatamount, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant not to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (ai) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(iA) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrower may declare and pay dividends with respect to their Equity Interests its capital stock;
(provided that if such B) Subsidiaries of the Borrower may make Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made Payments to the holders Borrower and to wholly owned Subsidiaries of its Equity Interests the Borrower and may declare and pay dividends ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, their capital stock;
(C) the Borrower may make other payments Restricted Payments pursuant to and in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 stock option plans or other benefit plans for directors, officers, consultants, advisors or employees of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03Subsidiaries, 6.04, 6.05 including the redemption or 6.09;
(iv) repurchases by Parent Borrower purchase of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests common stock of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant employees of the Parent Borrower or any Subsidiary following the termination of its Subsidiaries (or their employment in an aggregate amount not exceeding during any fiscal year the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) amount equal to two times the aggregate amount of Restricted Payments made under this clause (v) in any by the Borrower pursuant to such plans during the last fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending ended prior to 2010) which was the Effective Date, provided that exercises of stock options issued pursuant to stock option plans existing on the Effective Date in accordance with the terms of such plans in effect on the Effective Date shall not expended by Parent Borrower for Restricted Payments be included in the calculation of such fiscal years (the “Carryover Amount” amount and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years there shall be deemed to have been utilized first by any no limit on Restricted Payments made under this clause (v) in connection with such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal yearexercises;
(viD) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make pay the cash consideration payable in the Debt Tender, the cash consideration payable in the Equity Tender and the cash consideration payable in the Merger (including any Restricted Payment payments in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation respect of appraisal rights pursuant to Section 262 of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;Delaware General Corporation Law); and
(viiiE) repurchase of Equity Interests deemed each Financial Services Subsidiary may pay dividends with respect to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments preferred stock in an aggregate amount that, together with (A) not exceeding the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries such dividends required to be paid pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as terms of the date of any documents governing such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearpreferred stock.
(bii) Such The Borrower will not, nor will it permit any of its Restricted 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) in respect of principal of or interest on any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 cancelation or termination of any Restricted Indebtedness, except:
(iA) replacementspayment of Indebtedness created under the Loan Documents;
(B) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness (x) of the Borrower or (y) permitted under Section 5.02(k);
(C) refinancings of Indebtedness of the Borrower and, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by clause (xi) of Section 6.01;5.02(k), of any Subsidiary; and
(iiD) (A) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness, in each case in exchange for, or out transfer of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);Indebtedness.
(iii) payments The Borrower will not, nor will it permit any Subsidiary to, enter into or other distributions on account of the purchasebe party to, redemptionor make any payment under, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with Synthetic Purchase Agreement unless (A) in the aggregate amount case of all other such any Synthetic Purchase Agreement related to any shares of capital stock of the Borrower, the payments or other distributions required to be made by the Parent Borrower and its Restricted Subsidiaries pursuant are limited to this amounts permitted to be paid under clause (i) of Section 6.08(b)(v) after the date hereof5.02(l), (B) in the aggregate amount case of all other any Synthetic Purchase Agreement related to any Restricted Payments Indebtedness, the payments required to be made by the Parent Borrower and its Restricted or the Subsidiaries pursuant thereunder are limited to the amount permitted under clause (ii) of Section 6.08(a)(ix5.02(l) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtednessany Synthetic Purchase Agreement, the obligations of the Borrower and the Subsidiaries thereunder are subordinated to the extent not prohibited by Obligations on terms satisfactory to the subordination provisions thereof (if applicable)Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Temple Inland Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person the Borrower may declare and make Restricted Payments with respect to its Equity Interests Interest payable solely in additional shares of its Equity Interests;
, (ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such each Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made may make Restricted Payments to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germanysuch Equity Interests, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required (1) constituting fractional shares or (2) deemed to be repurchased in connection with the occur upon exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition securities convertible or retirement for value of exchangeable into Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any if such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees represent all or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction portion of the exercise price of such options or warrants, (iv) repurchases of common Equity Interests of the Borrower not to exceed in the aggregate $5,000,000, (v) repurchases or redemptions of preferred stock using the Net Proceeds of any issuance of common stock (which, for the avoidance of doubt, shall exclude any conversion of Indebtedness to Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described Borrower in an aggregate amount not to exceed $50,000,000; provided that no repurchase or redemptions of preferred stock pursuant to this clause (v) shall be permitted unless the PWC Steps Memo Borrower shall have first made or offered in writing to make (or shall make or offer in writing to make concurrently with such repurchase or redemption) a Specified Prepaymentvoluntary prepayment of an amount of Loans in a principal amount at least equal to the face amount of preferred stock being repurchased, and such prepayment shall be subject to a prepayment premium equal to (x) until the Borrower has prepaid the Loans after the First Amendment Effective Date pursuant to mandatory or voluntary prepayments in an aggregate principal amount of at least $150,000,000, 1.0% and (y) thereafter, the lesser of (1) 6.0% and (2) the applicable Prepayment Premium calculated in accordance with Section 2.06(c) as if the Loans had been prepaid pursuant to Section 2.06(a), (vi) regularly scheduled dividends on Series B Preferred Stock and Series C Preferred Stock (or any actions necessary Permitted Refinancing thereof) at a cash coupon rate not to implement such transactions;
(viiiexceed 7.00% per annum, plus(vii) repurchase of regularly scheduled dividends on other preferred Equity Interests of the Borrower to the extent incurred or deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
incurred under Section 6.01(a)(xxv)(c) and (ixviiviii) the Parent Borrower and its Restricted Subsidiaries may make other Restricted Payments in an aggregate amount that, together with (A) not to exceed in the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year5,000,000.
(b) Such The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, make make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”)of, or any other 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 Subordinated Indebtedness or any other Indebtedness for borrowed money of the Borrower or any Restricted IndebtednessSubsidiary (other than the Loans, except); provided that:
(i) replacementsthe ABL Loans, refinancingsthe Convertible Note, amendmentsLoan Parties may make regularly scheduled repayments (including payments of principal and interest as and when due) or redemptions of Indebtedness permitted to be incurred under Section 6.01 (including any Indebtedness of Foreign Subsidiaries permitted by Section 6.01(a)(xviii), supplementssecured Indebtedness permitted by Section 6.01(a)(vi) or (vii),; provided that, modificationswith respect to any intercompany Indebtedness permitted under Section 6.01(a)(iv) and (viii) in connection with any such payment, extensions(x) such regularly scheduled payments shall be made in the ordinary course of business, renewalsother Indebtedness with a principal amount not exceeding $10,000,000); provided that: and consistent with past practices, restatements and (y) with respect to any intercompany Indebtedness owed by any Loan Party to any Subsidiary organized or refunding formed in China, both before and after giving effect to such payment, U.S. Liquidity shall not be less than (1) with respect to any such repayment on or prior to December 31, 2024, $30,000,000 and (2) with respect to any such repayment after December 31, 2024, $50,000,000;
(i) the Loan Parties may make regularly scheduled repayments or redemptions of Indebtedness permitted to be incurred under Section 6.01 (including payments of principal and interest as and when due);
(ii) the Borrower or any Restricted Subsidiary may make payments and distributions in respect of, and purchase, redeem, retire, acquire, cancel or terminate any Indebtedness of the Borrower or any Restricted Subsidiary (x) by the conversion of such Indebtedness to Equity Interests of the Borrower or (y) with the issuance of common stock or Qualified Preferred Stock of the Borrower or the proceeds of such issuance;
(iii) with respect to any preferred stock constituting Indebtedness, the Borrower or any Restricted Subsidiary may make payments in respect of such preferred stock to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount6.08(a), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;and
(iv) payments or other distributions on account of the purchaserefinancings, redemptionreplacements, retirementextensions, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower renewals and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date refundings of such payment or distribution Indebtedness subject to and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied in accordance with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Agreement shall be permitted.; and
Appears in 1 contract
Samples: Credit Agreement (Eastman Kodak Co)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(i) each Subsidiary may make Restricted Payments to the Borrower and to its other Subsidiaries (and, in the case of a Restricted Payment by a non-wholly owned Subsidiary, to the Borrower and any of its other Subsidiaries and to each other owner of Equity Interests of such Person Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(ii) the Borrower and each Subsidiary may declare and make Restricted Payments with respect to its Equity Interests dividend payments or other distributions payable solely in additional shares the Equity Interests (other than Disqualified Equity Interests) of its such Person; provided that in the case of any such Restricted Payment by a Subsidiary that is not a Wholly Owned Subsidiary of the Borrower, such Restricted Payment is made to the Borrower, any Subsidiary and to each other owner of Equity Interests of such Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(iiiii) Restricted Subsidiaries may declare and pay dividends with respect Payments made on the Effective Date to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by consummate the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09Transactions;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required in Holdings or any Subsidiary deemed to be repurchased occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price or withholding taxes payable in connection with the exercise of stock such options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133warrants;
(v) Restricted Payments to Holdings which Holdings may use to redeem, acquire, retire, repurchase or settle its Equity Interests (or any options or warrants or stock appreciation rights issued with respect to any of such Equity Interests) (or make Restricted Payments to allow any of the Parent Holdings’ direct or indirect parent companies to so redeem, retire, acquire or repurchase their Equity Interests) held by current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of Holdings (only to the extent attributable to the Borrower) (or any direct or indirect parent thereof), the Borrower may pay for and the repurchaseSubsidiaries, upon the death, disability, retirement or other acquisition termination of employment of any such Person or retirement for value of Equity Interests of the Parent Borrower (including related otherwise in accordance with any stock option or stock appreciation rights or similar securities) held by plan, any future, present or former director, officer, member of management, director and/or employee stock ownership or consultant incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement in an aggregate amount after the Effective Date together with the aggregate amount of loans and advances to Holdings made pursuant to Section 6.04(m) in lieu of Restricted Payments permitted by this clause (v) not to exceed $4,500,000 in any calendar year with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $6,500,000 any calendar year (without giving effect to the following proviso); provided that such amount in any calendar year may be increased by an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or its Subsidiaries (or by Holdings and contributed to Borrower) after the Effective Date;
(vi) [Reserved]
(vii) the Borrower and the Subsidiaries may make Restricted Payments in cash to Holdings and any Intermediate Parent:
(A) to the extent Holdings is required to make any payments under Section 5.1(b) of the Limited Liability Company Agreement of Holdings, dated as of March 2, 2011, for tax periods starting after the Effective Date, without giving effect to amounts paid for prior tax periods;
(B) the proceeds of which shall be used by Holdings or any Intermediate Parent to pay (or to make Restricted Payments to allow any direct or indirect parent of Holdings to pay) (1) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses payable to third parties) that are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount together with the aggregate amount of loans and advances to Holdings made pursuant to Section 6.04(m) in lieu of Restricted Payments permitted by this clause (a)(vii)(B) not to exceed $1,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Holdings (or any parent thereof) attributable to the ownership or operations of the Borrower and the Subsidiaries, (2) fees and expenses (x) due and payable by the Borrower or any of its the Subsidiaries and (y) otherwise permitted to be paid by the Borrower or such Subsidiary under this Agreement and (3) so long as no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing or would result therefrom, any management, monitoring, consulting and advisory fees payable to the Investors on or after the Effective Date in an aggregate amount not to exceed $2,500,000 in any fiscal year;
(C) the proceeds of which shall be used by Holdings or any Intermediate Parent to pay (or the estateto make Restricted Payments to allow any direct or indirect parent of Holdings to pay) franchise and similar Taxes, heirsand other fees and expenses, family members, spouse, former spouse, domestic partner or former domestic partner of required to maintain its corporate existence;
(D) to finance any of the foregoing)Investment permitted to be made pursuant to Section 6.04; provided that (A) at such Restricted Payment shall be made substantially concurrently with the time closing of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, Investment and (B) Holdings or any Intermediate Parent shall, immediately following the aggregate amount of Restricted Payments made under this clause closing thereof, cause (v1) in any fiscal year does not exceed all property acquired (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (whether assets or Equity Interests but not including any fiscal year ending prior loans or advances made pursuant to 2010Section 6.04(b)) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to be contributed to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its the Subsidiaries or (2) the Person formed or acquired to merge into or consolidate with the estate, heirs, family members, spouse Borrower or former spouse of any of the foregoingSubsidiaries to the extent such merger or consolidation is permitted in Section 6.03) in order to consummate such fiscal yearInvestment, in each case in accordance with the requirements of Sections 5.11 and 5.12;
(viE) the repurchase proceeds of which shall be used by Holdings or any Intermediate Parent to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any unsuccessful equity or debt offering permitted by this Agreement so long as attributable to the Borrower and the Subsidiaries; and
(F) to make cash interest payments on, and payments pursuant to section 15 of, the Holdings Series B Notes and pay cash dividends on any preferred Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants issued in exchange for (or other convertible securities as a result of the Parent Borrower accepting such optionsconversion from) the Holdings Series B Notes, warrants or other convertible securities in each case, at a rate not in excess of that as satisfaction of in effect on the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactionsdate hereof;
(viii) repurchase in addition to the foregoing Restricted Payments and so long as (1) no Default or Event of Equity Interests deemed Default shall have occurred and be continuing or would result therefrom and (2) the Borrower shall be in compliance with the Financial Performance Covenant on a Pro Forma Basis as of the end of the most recent Test Period (regardless of whether such Financial Performance Covenant is applicable at such time), the Borrower may make additional Restricted Payments to occur upon any Intermediate Parent and Holdings, in an aggregate amount, not to exceed the non-cash exercise of Equity Interests to pay taxesAvailable Amount;
(ix) the Parent Borrower and redemptions in whole or in part of any of its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together Equity Interests for another class of its Equity Interests or with (A) the aggregate amount proceeds from substantially concurrent equity contributions or issuances of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amountnew Equity Interests; provided that (x) such new Equity Interests contain terms and provisions at least as of advantageous to the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on Lenders in all respects material to their interests as those contained in the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearEquity Interests redeemed thereby.
(b) Such The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries other 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 any purchase, redemption, retirement, acquisition, cancellation principal of or termination of interest on any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Subordinated Indebtedness, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) replacementspayment of regularly scheduled interest and principal payments as, refinancingsin the form of payment and when due in respect of any Indebtedness, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted any Subordinated Indebtedness prohibited by the subordination provisions thereof;
(ii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiii) (A) payments or other distributions on account the conversion of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of any Subordinated Indebtedness to Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), Holdings or (B) the conversion any of its direct or indirect parent companies or any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);Intermediate Parent; and
(iiiiv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) so long as (1) at the time no Default or Event of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or and (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution Borrower shall be made within 90 days of such notice and (y) after giving effect thereto, in compliance with the Parent Borrower is in compliance, Financial Performance Covenant on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account Basis as of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account end of the purchasemost recent Test Period (regardless of whether such Financial Performance Covenant is applicable at such time), redemptionprepayments, retirementredemptions, acquisitionpurchases, cancellation or termination defeasances and other payments in respect of Restricted Indebtedness, any Subordinated Indebtedness prior to their scheduled maturity in an aggregate amount thatamount, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant not to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person the Borrower may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
; (ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make Borrower or any other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
Subsidiary; (iii) to the extent constituting Restricted Payments, the Parent Borrower and may redeem shares of its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts capital stock which are required “restricted securities” (as defined in Rule 144 promulgated under the Securities Act of 1933) in an amount not to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests exceed 5.0% of the Parent Borrower (including related aggregate total voting stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any issued and outstanding on a fully diluted basis as of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (Biv) the aggregate amount Borrower may redeem shares of all Investments made its capital stock to settle any applicable tax obligations of a grantee of shares of any equity award (including any shares of restricted stock and any stock appreciation rights) which arise in connection with the vesting, exercise or other taxable event with respect to such awards, and (v) the Borrower may repurchase shares of its capital stock pursuant to and in accordance with any stock repurchase (or similar) program as approved by the Parent Borrower and its Restricted Subsidiaries pursuant Board of Directors for repurchase of up to Section 6.04(y)(ian aggregate of $15,000,000, (vi) after the date hereof Transfer Pricing Obligations and (Cvii) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereofIntercompany Obligations, shall not exceed the Available Amount; provided that the obligations subject to clause (xvii) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant subordinated to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio Obligations on a Pro Forma Basis is greater than 3.00 terms reasonably satisfactory to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearAdministrative Agent.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, make any or agree to make payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of on any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving provisions of the redemption notice, as applicable, will not be prohibited if, at the date of declaration governing subordination or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)intercreditor agreement.
Appears in 1 contract
Samples: Credit Agreement (Virtusa Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries to, declare or make make, directly or indirectly, any Restricted Payment, except:
(i) each Subsidiary may make Restricted Payments to the Borrower or any other Subsidiary; provided that if such Person Subsidiary is a Loan Party, then it can only make a Restricted Payment pursuant to this Section 6.06(a)(i) to another Loan Party;
(ii) the Borrower and each of its Subsidiaries may declare and make Restricted Payments with respect to its Equity Interests dividend payments or other distributions payable solely in additional shares the Qualified Equity Interests of its such Person; provided that in the case of any such Restricted Payment by a Subsidiary that is not a Wholly Owned Subsidiary of the Borrower, such Restricted Payment is made to the Borrower, any Subsidiary and to each other owner of Equity Interests of such Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any each of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that may (A) at the time of any such repurchase, retirement or other acquisition or retirement repurchase for fair value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to held by former directors, officers, members of managementemployees and consultants; (B) pay withholding or similar Taxes payable by present or former directors, officers, employees or consultants in respect of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of their Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
and (vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viiiC) repurchase of Equity Interests deemed to occur upon the non-cash a cashless exercise of Equity Interests to pay taxesoptions or warrants;
(ixiv) Eacheach of the Parent Subsidiaries of the Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with cash to the Borrower:
(A1) the aggregate amount proceeds of all other which will be used to pay the Tax liability to the relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns attributable to the income of the Borrower and/or any Subsidiary; provided that Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ixLEGAL_US_E # 106442886.16 107326154.2 equity) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of from any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale issuance of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood Borrower, so long as such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account Payment is made within 90 days of the purchasereceipt of such net cash proceeds and, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not with respect to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distributionRestricted Payments, no Event of Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenantstherefrom;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to the extent constituting Restricted Indebtedness Payments, the Borrower and its Subsidiaries may enter into transactions expressly permitted by this AgreementSections 6.03 and 6.04;
(vii) payments the Borrower or distributions on account any of intercompany Subordinated its Subsidiaries may (1) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (2) (a) solely to the extent permitted under Section 6.06(b), honor any conversion request by a holder of convertible Indebtedness not prohibited by (including any payment of cash in connection withupon such conversion pursuant to the terms of this Agreement; andsuch convertible Indebtedness in an amount not to exceed the sum of (x) the principal amount of such convertible Indebtedness plus (y) any payments received by the Borrower or any of its Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge Transaction or Permitted Warrant Transaction) and make cash payments in lieu of fractional shares in connection with any such conversion and (b) make payments in connection with a Permitted Bond Hedge Transaction and the settlement of any related Permitted Warrant Transaction (x) by delivery of shares of the Borrower’s common stock upon net share settlement thereof or (y) by set-off against the related Permitted Bond Hedge Transaction and payment of an early termination amount thereof in common stock upon any early termination thereof;
(viii) the Borrower or any of its Subsidiaries may make Restricted Payments in order to effectuate payments as part of an “applicable high yield discount obligation” catch-up payment with respect that at such time are permitted to Restricted Indebtedness permitted by this Agreement. Notwithstanding be made pursuant to Section 6.07(iii), (v), (vi) and (vii);
(ix) the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption Borrower may declare and pay dividends and distributions within 60 days after the record date therefor, if at the record date, no Event of declaration Default under Section 7.01(a), (b), (h) or (i) shall exist at the time of, or would result from, the making of such dividend, payment payment;
(x) the Borrower may redeem in whole or other distribution in part of any of its Equity Interests for another class of its Equity Interests or giving with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the redemption notice, Lenders in all respects material to their interests as applicable, will not be prohibited if, at those contained in the Equity Interests redeemed thereby; and
(xi) the Borrower may repurchase shares of its common stock in the open market or in private transactions or pay cash dividends on its common stock; provided that on the date of declaration such repurchase or notice such dividendpayment (i) no Default has occurred and is continuing or would result therefrom, payment or other distribution or redemption would have complied with (ii) the terms of this Agreement. For Total Leverage Ratio shall not be greater than 0.25 less than the avoidance of doubt, Total Leverage Ratio in effect on the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when dueEffective Date, and (iii) the Administrative Agent shall have received a certificate of a Responsible Officer, in the case of Subordinated Indebtedness, form and substance reasonably satisfactory to the extent not prohibited by the subordination provisions thereof (if applicable).Administrative Agent,
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
, (x) any Loan Party may make a Permitted Holdings Dividend and (y) so long as no Event of Default shall have occurred and be continuing or would result therefrom (including after giving effect thereto on a pro forma basis), (i) such Person may declare each of Holdings and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrowers may declare and pay dividends with respect to its common stock payable solely in additional shares of its common stock, and, with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock, (ii) Subsidiaries may declare and pay dividends to the Borrowers, (iii) the Loan Parties and their Subsidiaries may make Restricted Payments payable solely in the form of their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made pursuant to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments and in accordance with domination employment agreements, bonus plans, stock option plans, or other benefit plans for existing, new and profit former management, directors, employees and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 consultants of the German Stock Corporation Act (AktG) as well as distribute profits Loan Parties and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Paymentstheir Subsidiaries, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower Holdings and its Subsidiaries may make any other Restricted Payment in connection with the Rothsay Acquisition Payment, so long as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other such Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ixclause (iv) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall during any Fiscal Year does not exceed the Available Amount; provided sum of $5,000,000 plus the Cumulative Retained Excess Cash Flow Amount that (x) as is in effect immediately prior to the time of the date making of any such Restricted Payment and after giving effect thereto no Default (provided that the use of the Cumulative Retained Excess Cash Flow Amount to make Restricted Payments shall exist or would result therefrom or be subject to (yA) no Default shall exist or Event of Default has occurred and is continuing or would result therefrom on be caused by the date of declaration making of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (AB) (x) as of the date of any such Restricted Payment both prior to and after giving effect theretoto such Restricted Payment, no Default the Senior Secured Leverage Ratio shall exist not exceed 3.25:1.00 as of the last day of the most recent Fiscal Quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or would result therefrom or 5.01(b) (or, prior to the delivery of any such financial statements, as of the last Fiscal Quarter included in the financial statements referred to in Section 3.04(a)) and (y) no Default the Borrower Representative shall exist or would result therefrom as have delivered to the Administrative Agent a certificate of a Financial Officer of Holdings, setting forth reasonably detailed calculations demonstrating the satisfaction of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this condition appearing in clause (x) in respect of a fiscal year above) and (including the Restricted Payment in questionv) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower Holdings may enter into, exercise its rights and perform its Restricted Subsidiaries for the immediately preceding fiscal yearobligations under, Permitted Call Spread Swap Agreements.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted under this Agreement, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) payment of intercompany Indebtedness incurred in accordance with Section 6.01;
(iv) refinancings of Indebtedness to the extent permitted by Section 6.01;
(v) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness so long as the proceeds of such sale are sufficient to repay such Indebtedness in full;
(vi) payments made in respect of the sinking fund requirement under the New Markets Tax Credit Financing, so long as (i) after giving effect to such payment, the aggregate amount of all such payments does not exceed the then outstanding principal amount of the Dairyland HP Indebtedness, and (ii) no Default or Event of Default has occurred and is continuing or would be caused by such payment;
(Avii) prepayments or repayments with respect to the Dairyland HP Indebtedness, so long as no Default or Event of Default has occurred and is continuing or would be caused by such payment;
(viii) mandatory prepayments and voluntary repayments of Indebtedness under the ABL Facility to the extent not prohibited by the Intercreditor Agreement;
(ix) issuance of Equity Interests, or making cash payments (in the case of any cash payments in respect of Permitted Convertible Seller Notes, so long as no Default or other distributions on account Event of Default has occurred and is continuing or would be caused by such payment), in connection with or as part of the purchaseconversion, redemption, retirement, acquisition, prepayment or cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)Permitted Convertible Notes;
(x) payment of regularly scheduled interest payments in respect of Permitted Convertible Seller Notes permitted pursuant to clause (i) of Section 6.01(j) hereof, so long as no Default or Event of Default has occurred and is continuing or would be caused by such payment; and
(xi) any other payments in respect of Subordinated Indebtedness, so long as (i) the aggregate amount of all payments made pursuant to this clause (xi) does not exceed the Cumulative Retained Excess Cash Flow Amount that is in effect immediately prior to the time of making such payment, (ii) no Default or Event of Default has occurred and is continuing or would be caused by such payment and (iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) both prior to and after giving effect to such payment, the Senior Secured Leverage Ratio shall not exceed 3.25:1.00 as of the last day of the most recent Fiscal Quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (1) at or, prior to the time delivery of any such payment or other distributionfinancial statements, no Default as of the last Fiscal Quarter included in the financial statements referred to in Section 3.04(a)) and (y) the Borrower Representative shall have occurred and be continuing or would result therefrom or delivered to the Administrative Agent a certificate of a Financial Officer of Holdings, setting forth reasonably detailed calculations demonstrating the satisfaction of the condition appearing in clause (2x) above; provided, however, that no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted the ABL Obligations in violation of the Intercreditor Agreement or in respect of any Subordinated Indebtedness when due, and in the case violation of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof applicable thereto.
(if applicable)c) No Loan Party will, nor will it permit any Subsidiary to, make, directly or indirectly, any Specified Earn-Out Payment, unless no Default or Event of Default has occurred and is continuing or would be caused by such Specified Earn-Out Payment.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower Company will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, exceptor incur any obligation (contingent or otherwise) to do so, except that:
(i) such Person the Company may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares Equity Interests (other than Disqualified Stock) of its Equity Intereststhe Company;
(ii) Restricted Subsidiaries any Subsidiary may declare and pay dividends or make other distributions with respect to their its Equity Interests (provided that if such Interests, or make other Restricted Subsidiary is not wholly-owned by the Parent BorrowerPayments in respect of its Equity Interests, such dividends must be made in each case ratably to the holders of its such Equity Interests ratably according (or, if not ratably, on a basis more favorable to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination the Company and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithSubsidiaries);
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09[reserved];
(iv) repurchases by Parent Borrower [reserved];
(v) the Company may make cash payments in lieu of partial the issuance of fractional shares representing insignificant interests in its Equity Interests for nominal amounts which are required to be repurchased the Company in connection with the exercise of stock warrants, options or warrants to permit the issuance of only whole other securities convertible into or exchangeable for shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) common stock in the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal yearCompany;
(vi) the repurchase of Equity Interests Company’s Subsidiaries may make Restricted Payments to the Borrower Representative on or around and upon the execution and effectiveness of the Parent Borrower that occurs upon RSA to pay fees and expenses in accordance therewith to the cashless exercise of stock options, warrants or other convertible securities as a result of extent permitted in the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity InterestsFinal Order;
(vii) such Parent Borrower [reserved];
(viii) the Company and its Subsidiaries may make any Restricted Payment Payments to the extent provided for in connection with the Rothsay Acquisition as contemplated Approved Budget (subject to Permitted Variances thereto) and permitted by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;Final Order; and
(ix) to the Parent Borrower extent constituting a Restricted Payment, the Company and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) consummate the aggregate amount of all other Restricted Payments made transactions permitted by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount6.05; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134and
(x) Restricted Payments to permit payment of franchise and similar taxes, administrative and maintenance expenses, and foreign independent director (or foreign independent member or manager) fees and expenses and related expenses, in each case, of certain non-Debtor affiliate entities to the Parent Borrower may make additional Restricted Payments; extent provided that (A) (x) as of in the date of any such Restricted Payment and after giving effect thereto, no Default shall exist “first day” or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio “second day” orders on a Pro Forma Basis is greater than 4.50 to 1.00 or final basis entered by the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) Court in respect of a fiscal year ongoing cash management in the ordinary course of business consistent with past practice and to the extent provided for in the Approved Budget (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearPermitted Variances thereto).
(b) Such Borrower The Company will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, make or agree to pay or make, directly or indirectly, any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Specified Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding payments of Restricted regularly scheduled interest and principal payments as and when due in respect of any Specified Indebtedness to the extent provided for in in the Approved Budget (including Permitted Variances thereto) and permitted by Section 6.01the Final Order;
(ii) [reserved];
(iii) to the extent not subject to any mandatory prepayment of the Loans or reinvestment required pursuant to the mandatory prepayment provisions and/or reinvestment provisions of Section 2.11(c), payment of secured Indebtedness that becomes due as a result of (A) any voluntary sale or transfer of any assets securing such Indebtedness or (B) any casualty or condemnation proceeding (including a disposition in lieu thereof) of any assets securing such Indebtedness;
(iv) payments of or other distributions on account in respect of Indebtedness solely by issuance of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity InterestsStock) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)Company;
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments of or other distributions on account in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made Indebtedness incurred by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall any Subsidiary that is not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such noticea Debtor; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited provided for in the Approved Budget (including Permitted Variances thereto) and permitted by the subordination provisions Final Order
(c) The Company will not, and will not permit any Subsidiary to, amend, modify or change in any manner adverse to the interests of the Lenders any term or condition of any documentation governing Specified Indebtedness; provided that immaterial amendments of an administrative, ministerial or technical nature may be made so long as contemporaneous written notice thereof (if applicable)is provided to the Administrative Agent.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Ascena Retail Group, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries Holdings may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its common stock payable solely in additional shares of its Equity Interests ratably according to their interests) common stock, and, solely with respect to Subsidiaries organized its preferred stock, payable solely in Germanyadditional shares of such preferred stock or in shares of its common stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other payments in accordance with domination Subsidiary that is a Loan Party, and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to the extent constituting Restricted PaymentsHoldings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Parent Borrower Manager or the Borrower, as the case may be, and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased incurred primarily in connection with the exercise business of stock options the Borrower, so long as no Default shall have occurred and is continuing or warrants would occur as a result thereof, (iv) the Borrower may make distributions to permit Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the issuance operations of only whole shares the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of Equity Interests; CREDIT AGREEMENTa consolidated group, Page 133
(v) so long as the Parent Borrower may pay for Distribution Conditions have been satisfied (as determined by the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of Administrative Agent in its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (Areasonable discretion) at the time of, and with respect to, any Restricted Payment not otherwise permitted by the foregoing clauses (i) through (iv), the Borrower may make such Restricted Payment to Holdings and Holdings may make such Restricted Payment to holders of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the Equity Interests in Holdings in an aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not to exceed (x) $10,000,000 (20,000,000 in any trailing twelve month period ending on the “Yearly Limit”) plus date such Restricted Payment is made, or (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) $40,000,000 after the date hereof, (Bvi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the aggregate amount Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issuance of all Investments made by new common Equity Interests or where the Parent Borrower and its Restricted Subsidiaries pursuant consideration is the cancellation of Indebtedness owed to Section 6.04(y)(i) after the date hereof any Loan Party; and (Cviii) Permitted J/Vs may make Restricted Payments to the aggregate amount holders of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) their Equity Interests so long as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is Payments are made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 pro rata basis to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) all such holders in respect of a fiscal year (including the Restricted Payment accordance with their respective Equity Interests in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.such Permitted J/V.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding payment of Restricted Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) (A) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness, in each case in exchange for, or out transfer of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135and
(v) payments repayments on, reductions of, forgiveness of or other distributions on account the termination of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted IndebtednessParent Note so long as, in an aggregate amount thatany case, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no Default shall exist net cash outflow to Holdings from the Borrower or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Potbelly Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) such Person HF Foods may declare and make Restricted Payments dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) so long as HF Industrial is a "pass through" entity for federal income Tax purposes, HF Industrial may make distributions to the holders of its Equity Interests, in an aggregate amount not greater than the amount necessary for such holders to pay their actual state and U.S. federal income Tax liabilities in respect of income earned by HF Industrial, after deducting any unused prior losses;
(iii) so long as Monterey is a "pass through" entity for federal income Tax purposes, Monterey may make distributions to the holders of its Equity Interests, in an aggregate amount not greater than the amount necessary for such holders to pay their actual state and U.S. federal income Tax liabilities in respect of income earned by Monterey, after deducting any unused prior losses;
(iv) so long as Ocean West is a "pass through" entity for federal income Tax purposes, Ocean West may make distributions to the holders of its Equity Interests, in an aggregate amount not greater than the amount necessary for such holders to pay their actual state and U.S. federal income Tax liabilities in respect of income earned by Ocean West, after deducting any unused prior losses;
(v) HF Food's Subsidiaries (other than Ocean West, Monterey, Min Food, HF Industrial and Kirnland) may make distributions to HF Foods, and HF Foods may make distributions to the holders of its Equity Interests, in each case constituting Other Restricted Subsidiaries Payments;
(vi) Ocean West may declare and pay dividends with respect make distributions to their the holders of its Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent BorrowerInterests, such dividends must be made Rongcheng may make distributions to the holders of its Equity Interests ratably according of its portion of such distributions from Ocean West, B&R may pay dividends to their interests) andHF Foods in the same amount, solely with respect to Subsidiaries organized in Germany, and HF Foods may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) pay dividends to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower holders of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENTsame amount, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of in each case constituting Other Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity InterestsPayments;
(vii) such Parent Borrower and Min Food may pay dividends to the holders of its Subsidiaries Equity Interests, B&R may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described pay dividends to HF Foods in the PWC Steps Memo same amount and any actions necessary HF Foods may pay dividends to implement the holders of its Equity Interests of its portion of such transactionsdividends from Min Food, in each case constituting Other Restricted Payments;
(viii) repurchase Monterey may make distributions to the holders of its Equity Interests, Rongcheng may make distributions to the holders of its Equity Interests deemed of its portion of such distributions from Monterey, B&R may pay dividends to occur upon HF Foods in the non-cash exercise same amount and HF Foods may pay dividends to the holders of its Equity Interests to pay taxesin the same amount, in each case constituting Other Restricted Payments;
(ix) Kirnland may pay dividends to the Parent Borrower holders of its Equity Interests, HF Holding may pay dividends to HF Foods in the same amount and HF Foods may pay dividends to the holders of its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount Equity Interests of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration portion of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix)dividends from Kirnland, in no event shall more than $300,000,000 in each case constituting Other Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix)Payments; CREDIT AGREEMENT, Page 134and
(x) HF Industrial may pay dividends to the Parent Borrower holders of its Equity Interests, Xxx Xxxx may make additional pay dividends to HF Holding in the same amount, HF Holding may pay dividends to HF Foods in the same amount and HF Foods may pay dividends to the holders of its Equity Interests of its portion of such dividends from HF Industrial, in each case constituting Other Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of the Chase Equipment Debt;
(iii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted under Section 6.01, refinancings, amendments, supplements, modifications, extensions, renewals, restatements other than payments in respect of the Subordinated Indebtedness (other than the B&R Realty Seller Note) prohibited by the subordination provisions thereof or refunding the subordination agreement relating thereto;
(iv) refinancings of Restricted Indebtedness to the extent permitted by Section 6.01;
(iiv) (A) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness, in each case in exchange for, or out transfer of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments the extent such sale or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower transfer is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made permitted by the Parent Borrower and its Restricted Subsidiaries pursuant to this terms of Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and6.05;
(vi) payment-in-kind payment of regularly scheduled interest with as and when due in respect to Restricted Indebtedness permitted by this Agreement;
(vii) of the B&R Realty Seller Note, other than payments or distributions on account of intercompany Subordinated Indebtedness not in respect thereof prohibited by the terms of this B&R Realty Subordination Agreement; and
(viiivii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled voluntary payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when duethe B&R Realty Seller Note, so long as (a) immediately after giving effect to such payment the Payment Condition shall be satisfied and in the case of Subordinated Indebtedness, to the extent (b) such payment is not prohibited by the subordination provisions thereof (if applicable)B&R Realty Subordination Agreement.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower No Loan Party will, or will not, nor will it permit any of its Restricted Subsidiaries subsidiaries to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so prior to the Tranche B Maturity Date, except (i) such Person Holdings may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares Equity Interests of its Holdings that do not require (or permit the holder of such Equity Interests;
Interest to require) any payments or other distribution (whether in cash, securities or other property) to the holder of such Equity Interests prior to the Tranche B Maturity Date, (ii) Restricted Subsidiaries Loan Parties (other than Holdings) that are wholly-owned subsidiaries of Holdings may declare and pay dividends ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent BorrowerInterests, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) provided no Event of Default is occurring or would result therefrom, Restricted Payments to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its repurchase Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options Holdings (or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENTany Parent) from retired, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement deceased or other acquisition terminated employees or retirement for value of Equity Interests of the Parent Borrower directors (including related stock appreciation rights or similar securitiestheir Heirs) held by of any futureParent, present or former director, officer, member of management, employee or consultant of the Parent Borrower Holdings or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate subsidiaries in an amount of Restricted Payments made under this clause (v) not to exceed $1,000,000 in any fiscal year does not exceed and $5,000,000 in the aggregate, (xiv) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments to repurchase Equity Interests in such fiscal years Holdings (the “Carryover Amount” and in calculating the Carryover Amount for or any fiscal yearParent) from retired, the Yearly Limit applicable deceased or terminated employees or directors (including their Heirs) of any Parent, Holdings or any of its subsidiaries, to the previous fiscal years shall be deemed to have been utilized first by any extent such Restricted Payments made under this clause constitute Indebtedness that is not secured and is subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent; provided that no more than $5,000,000 in aggregate principal amount of such Indebtedness may be outstanding at any time, (v) in such fiscal year) plus (z) an amount equal any Restricted Payment made pursuant to the cash proceeds from Acquisition Documents, (vi) Restricted Payments to any Parent for the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or maintenance of its Subsidiaries corporate existence and compliance with applicable law or accounting, legal, public relations, investor relations, financial or management activities (including the employment of employees, agents, accountants, consultants, bankers, advisors or the estate, heirs, family members, spouse or former spouse of other professionals in connection with any of the foregoing) in such fiscal an amount not to exceed $1,500,000 per year;
, (vivii) the repurchase of any Loan Party may issue Equity Interests of that do not require (or permit the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price holder of such Equity Interests;
Interest to require) any payments or other distributions (viiwhether in cash, securities or other property) to the holder of such Parent Borrower and its Subsidiaries Equity Interests prior to the Tranche B Maturity Date, to the extent such issuance is in connection with a Permitted Acquisition or a transaction permitted by Section 6.05(j), (viii) any Loan Party may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary payments related to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
an Earnout, (ix) the Parent Borrower payments permitted under Section 6.09(d) shall be permitted to be made, (x) so long as no Event of Default shall have occurred and its Restricted Subsidiaries be continuing or would result therefrom, the Loan Parties may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all any other Restricted Payments made by not to exceed $1,000,000, in the Parent Borrower aggregate, in any fiscal year of Holdings and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) $5,000,000 in the aggregate amount during the term of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amountthis Agreement; provided that any amount not utilized in a previous fiscal year may be utilized in the immediately succeeding (xbut no other) as of the date of any such Restricted Payment fiscal year and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(xxi) the payment by Holdings to any Parent Borrower may make additional Restricted Payments; provided that (A) (x) of proceeds from the exercise of stock options of Holdings, so long as of such stock options shall have been issued and outstanding on or before the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearEffective Date.
(b) Such Borrower No Loan Party will, or will not, nor will it permit any of its Restricted Subsidiaries 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 purchase, redemption, retirement, acquisition, cancellation or termination Indebtedness other than the Obligations as a result of any Subordinated Indebtedness asset sale, change of control or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), similar event or any other 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 such Indebtedness as a result of any Restricted Indebtednessasset sale, change of control or similar event, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding payment of Restricted regularly scheduled interest and principal payments as and when due in respect of any such Indebtedness to the extent permitted by Section 6.01;; and
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice refinancings of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited permitted by the subordination provisions thereof (if applicable)Section 6.01.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries subsidiaries to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person the Subsidiaries may declare and make Restricted Payments pay dividends ratably with respect to their Equity Interests, (ii) Holdings may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of Qualified Equity Interests, (iii) Holdings may make (and the Parent Borrower may declare and make dividends or other distributions to Holdings in amounts necessary to permit Holdings to make) Restricted Payments in an aggregate amount not to exceed $3,000,000 in any fiscal year of the Parent Borrower to cancel, redeem, acquire or repurchase shares of its Equity Interests;
common or preferred stock held by, or stock options granted to, directors and employees of the Loan Parties in the event of death, disability, termination of employment or retirement of any such director or employee (iiit being understood that such Restricted Payment may be in the form of Indebtedness subordinated to the Obligations in a manner reasonably acceptable to the Administrative Agent), (iv) Restricted Subsidiaries Holdings may declare and pay dividends with respect to their exchange its Qualified Equity Interests for, and in repayment or prepayment of, any subordinated Indebtedness permitted by Section 6.01(q) or refinance such subordinated Indebtedness with other subordinated Indebtedness to the extent permitted by Section 6.01(q), (provided v) Holdings may and the Parent Borrower may, or may make Restricted Payments to Holdings so that if such Holdings may, make Restricted Subsidiary is Payments, not wholly-owned exceeding $1,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans approved by the Parent Borrower’s board of directors for management or employees of Holdings, the Parent Borrower and the Subsidiaries, (vi) the Parent Borrower may make Restricted Payments to Holdings at such dividends must times and in such amounts (A) not exceeding $500,000 during any fiscal year (or $4,000,000 in any fiscal year of the Parent Borrower following the completion of an IPO where Holdings is the Public Company), as shall be necessary to permit Holdings to discharge its general corporate and overhead (including franchise taxes and directors fees) expenses incurred in the ordinary course and other permitted liabilities and (B) as shall be necessary to pay the Tax liabilities of Holdings directly attributable to (or arising as a result of) the operations of the Parent Borrower and the Subsidiaries; provided, however, that (1) the amount of Restricted Payments pursuant to clause (B) of this clause (vi) shall not exceed the amount that the Parent Borrower and the Subsidiaries would be required to pay in respect of federal, state, provincial and local taxes were the Parent Borrower and the Subsidiaries to pay such taxes as stand-alone taxpayers and (2) all Restricted Payments made to Holdings pursuant to this clause (vi) are used by Holdings for the holders purposes specified herein within five Business Days after Holdings’ receipt thereof, (vii) the Parent Borrower may make Restricted Payments to the extent necessary to permit Holdings to make, and Holdings may make, payments of its Equity Interests ratably according or on account of (A) management, consulting and advisory fees, (B) transaction fees and (C) reimbursement of reasonable out-of-pocket costs and expenses incurred in connection with management, consulting and advisory services, in each case to their interests) andthe Sponsor and the Sponsor Affiliates to the extent permitted by Section 6.09(f), provided that, solely with respect to Subsidiaries organized in GermanyRestricted Payments made pursuant to subclause (A) of this clause (vii), no Event of Default shall have occurred and be continuing or would result therefrom, (viii) concurrently with any issuance of Qualified Equity Interests, Holdings may make other payments in accordance with domination and profit and loss pooling agreements redeem, purchase or retire any Equity Interests of Holdings using the proceeds of, or convert or exchange any Equity Interests of Holdings for, such Qualified Equity Interests, (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iiiix) to the extent constituting permitted by the Senior Secured Notes Indenture, the Loan Parties may make Restricted PaymentsPayments from (and within one year of the receipt of) AAG Proceeds, (x) the Loan Parties may make Restricted Payments comprised of no more than 25% of the Purchase Price Adjustment Proceeds, if any, (xi) Holdings may make repurchases of Equity Interests of Holdings deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants pursuant to and in accordance with stock option plans or other benefit plans approved by the Holdings’s or the Parent Borrower’s board of directors for management or employees of Holdings, the Parent Borrower and its Restricted Subsidiaries the Subsidiaries, (xii) Holdings may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by and the Parent Borrower may, or may make Restricted Payments to Holdings so that Holdings may, make cash payments in lieu of partial interests in its Equity Interests for nominal amounts which are required to be repurchased the issuance of fractional shares in connection with the exercise of stock warrants, options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay other securities convertible into or exchangeable for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings or the Parent Borrower (including related stock appreciation rights or similar securities) held by any futureBorrower, present or former directoras the case may be, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(xxiii) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment to Holdings, and after giving effect theretoHoldings may make, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearusing Excluded Proceeds.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments (and fees and expenses payable) as, refinancingsin the form of payment and when due in respect of any Indebtedness, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted any Indebtedness subordinated to the Secured Obligations to the extent prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.016.01 and payments described in clause (a)(iv) of this Section 6.08;
(iiiv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) payments and prepayments of Indebtedness made with Excluded Proceeds;
(vi) to the extent permitted under the Senior Secured Notes Indenture, (A) payments or other distributions on account the purchase of Senior Secured Notes from the purchaseAAG Proceeds, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion purchase of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, Senior Secured Notes in an aggregate amount not to exceed the greater of $25,000,000 and 1% if, in the case of Consolidated Total Assets; provided that this clause (x) (1) at B), the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) Reference Availability immediately after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is to any such purchase shall not be less than 4.00 to 1.00; CREDIT AGREEMENT$75,000,000, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount purchase of all Investments made by the Parent Borrower and its Restricted Subsidiaries Senior Secured Notes pursuant to Section 6.04(y)(i) after an Excess Cash Flow Offer (as defined in the date hereofSenior Secured Notes Indenture), shall not exceed provided that, in the Available Amount; provided that case of clause (x) as of the date of such payment or distribution C), immediately before and after giving effect thereto no Default to such purchase of Senior Secured Notes, the amount equal to (x) the lesser of (1) the Commitments at such time and (2) the Total Borrowing Base at such time shall exist or result therefrom or exceed (y) no Default shall exist or would result therefrom on the date Revolving Exposure at such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted time by this Agreementat least $75,000,000;
(vii) payment of obligations under Swap Agreements permitted by Section 6.07 in respect of (A) any mandatory or involuntary termination thereof and (B) any voluntary termination thereof in the ordinary course of business;
(viii) payment of Indebtedness permitted by Section 6.01 to the extent necessary to avoid any Default created by currency fluctuations caused by application of Section 1.05;
(ix) payments and prepayments of Indebtedness permitted by Xxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x), (x), (x) or distributions on account of intercompany Subordinated Indebtedness (r), provided that, immediately after giving effect to any such payment or prepayment, Reference Availability shall not prohibited by the terms of this Agreementbe less than $35,000,000; and
(viiix) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving repayment of the redemption notice, as applicable, will not be prohibited if, at Co-Investor Fronting Loans using the date proceeds of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited Equity Contributions made by the subordination provisions thereof (if applicable)Fronting Co-Investors.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Prior to the Investment Grade Date, neither Limited nor the Borrower will notwill, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person Limited may declare and make Restricted Payments pay dividends with respect to its Equity Interests capital stock payable solely in additional shares of its Equity Interests;
common stock, (ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrowercapital stock, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries Limited may make Restricted Payments pursuant to and in an aggregate amount that, together accordance with (A) stock option plans or other benefit plans for management or employees of the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereofSubsidiaries, (Biv) the aggregate amount of all Investments made by the Parent Borrower may pay dividends to Limited at such times and in such amounts as shall be necessary to permit Limited to discharge its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereofpermitted liabilities, shall not exceed the Available Amount; provided that (x) as if a Default or Event of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) have -------- occurred and be continuing no Default shall exist or would result therefrom on such dividends may be paid the date proceeds of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant which are used to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchaseGuarantee or any Indebtedness of Limited, redemptionand (v) Restricted Payments may be made in respect of the Preferred Stock as required thereunder so long as no Default would exist as a result of making such payments.
(b) Prior to the Investment Grade Date, retirementneither Limited nor the Borrower will, acquisitionnor will they permit any Restricted Subsidiary to, cancellation make or termination 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 Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 cancelation or termination of any Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents or the Senior Notes;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted subordinated Indebtedness prohibited by the subordination provisions thereof; (iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower No Loan Party will, or will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
Payment other than (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
Permitted Dividends, (ii) Restricted Subsidiaries may declare Permitted Dispositions, and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) so long as (x) no Event of Default has occurred and is continuing, and (y) there is a minimum amount of $20,000,000 available to the extent constituting Restricted PaymentsLoan Parties through either cash remaining in the SPAC Blocked Account or in Excess Availability (as defined in the Existing First Lien Credit Agreement) under the Existing First Lien Credit AMENDMENT NO. 7, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03OF AMERICAN APPAREL (USA), 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required LLC Agreement subsequent to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) repurchases of the Loan Parties’ Capital Stock in an amount not to exceed $30,000,000 in the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (with the “Yearly Limit”) plus (y) the portion proceeds of the Yearly Limit from each Loan Parties’ cash on hand (or cash equivalents) contained in the SPAC Blocked Account, without the prior written consent of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (Administrative Agent and the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearRequired Lenders.
(b) Such Borrower No Loan Party will, or will not, nor will it permit any of its Restricted Subsidiaries toSubsidiary to make or agree to pay or make, 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementsso long as no Event of Default then exists or would arise therefrom, refinancings(x) mandatory payments and prepayments of interest and principal as and when due in respect of any Permitted Indebtedness, amendmentsand (y) prepayments of principal not to exceed $1,000,000 in any twelve-month period, supplementsin each case in respect of any Permitted Indebtedness (other than Subordinated Indebtedness, modifications, extensions, renewals, restatements or refunding Senior Debt and the Indebtedness described in clauses (n) and (o) of Restricted Indebtedness to the extent permitted by Section 6.01definition of “Permitted Indebtedness”);
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out Indebtedness outstanding as of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)Closing Date and as set forth on Schedule 6.01;
(iii) payments or other distributions on account of Subordinated Indebtedness to the purchase, redemption, retirement, acquisition, cancellation extent permitted under any subordination agreement or termination of Restricted Indebtedness, provisions governing such Indebtedness and including any payments to be made pursuant to the Merger Agreement (as set forth on Schedule 5.25(c) thereof) in an aggregate amount not to exceed $5,000,000 (other than the greater Indebtedness described in clauses (n) and (o) of $25,000,000 the definition of “Permitted Indebtedness”);
(iv) refinancing of any Permitted Indebtedness (other than Indebtedness described in clauses (n) and 1(o) of the definition of “Permitted Indebtedness”) to the extent that (x) the principal amount of the Permitted Indebtedness being so refinanced is not increased by such refinancing except on account of fees and expenses required to be paid incidental to such refinancing, provided that in no event shall such increased principal amount exceed 102% of Consolidated Total Assetsthe principal amount of the Indebtedness so refinanced, (y) such refinancing is on terms and conditions reasonably acceptable to the Administrative Agent, and (z) the refinancing lender enters into an intercreditor agreement with the Administrative Agent on terms and conditions that the Agents, in their sole discretion exercised in good faith, deem necessary or desirable;
(v) payments as and when due pursuant to the Canadian Loan Agreement or prepayments under the Canadian Loan Agreement; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution payments shall be made within 90 days of such notice only by a Canadian Subsidiary, and (y) after giving effect theretono Loan Party may transfer proceeds of the Loans to any Canadian Subsidiary for purposes of making such payments; and AMENDMENT NO. 7, the Parent Borrower is in complianceOF AMERICAN APPAREL (USA), on a Pro Forma Basis, with the Financial Covenants;LLC
(ivvi) payments any prepayments of principal on the US Dov Promissory Note or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, CN Dov Promissory Note to the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other extent such payments or other distributions made prepayments are permitted by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available AmountCanadian Lender; provided that (x) as of the date of such payment or distribution prepayments shall be made only by a Canadian Subsidiary, and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom Loan Party may transfer proceeds of the Loans to any Canadian Subsidiary for purposes of making such prepayments.”
(ii) Section 6.09 (Restricted Agreements) of the Credit Agreement is hereby amended by deleting the last sentence and replacing it with the following: “Notwithstanding anything in this SECTION 6.09 to the contrary, neither (i)(a) the prohibition on the date such Person provides notice pledge of such payment security interest in the Capital Stock of the Canadian Subsidiaries, nor (b) the prohibition on the granting of any guaranty or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind security interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms Canadian Subsidiaries, in each case set forth in the Canadian Loan, nor (ii) the prohibitions, restrictions and impositions of this Agreement; and
conditions expressly set forth in the Merger Agreement and Lim Option Agreements (viii) payments as part to the extent such prohibitions, restrictions and impositions of an “applicable high yield discount obligation” catch-up payment conditions are in connection with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment merger or other distribution or giving of the redemption notice, transactions related thereto as applicable, will expressly set forth in the Merger Agreement and would not result in a Material Adverse Effect) shall be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of by this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)SECTION 6.09.”
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries to, declare or make 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) such Person each Subsidiary may declare and make Restricted Payments with to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect to its Equity Interests payable solely in additional shares of its Equity Interestswhich such Restricted Payment is being made;
(ii) Restricted Subsidiaries the Borrower and each Subsidiary may declare and pay dividends with respect to their make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (provided that if of such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithPerson;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and each Subsidiary may purchase, redeem or otherwise acquire its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests; and
(iv) repurchases by Parent the Borrower of partial interests in may declare and pay cash dividends with respect to its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of common stock options and purchase, redeem, retire, acquire, cancel or warrants to permit the issuance of only whole terminate shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing)common stock; provided that (A) at the time of immediately prior to and immediately after giving effect to any such repurchaseRestricted Payment, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount Event of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” Default shall have occurred and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower continuing and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(ithis clause (iv) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, during any Fiscal Year shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year5,000,000.
(b) Such The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in respect violation of any purchasesubordination terms of, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements prepayments of Indebtedness created under the Loan Documents;
(ii) regularly scheduled or refunding required repayments or redemptions of Restricted Indebtedness set forth in Schedule 6.01; and
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent None of the Borrower or any Subsidiary will not, nor will it permit any of its Restricted Subsidiaries to, declare or make make, directly or indirectly, any Restricted Payment, exceptor incur any obligation (contingent or otherwise) to do so (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Equity Interests) of the person paying such dividends or distributions), except that, without duplication:
(i) such Person any Subsidiary of the Borrower may declare and pay dividends or make Restricted Payments other distributions with respect to its capital stock, partnership or membership interests or other similar Equity Interests payable solely Interests, or make other Restricted Payments in additional shares respect of its Equity Interests, in each case ratably to the holders of such Equity Interests;
(ii) Restricted Subsidiaries the Borrower or any Subsidiary may declare and pay dividends or make other distributions to Parent at such times and in such amounts as necessary to permit Parent:
(A) to pay (or to make a payment to any Controlling Company to enable it to pay) franchise taxes or similar taxes, and other fees and expenses, required to maintain the corporate existence of Parent or any Controlling Company;
(B) to pay (or to make a payment to any Controlling Company to enable it to pay) such entities’ operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including, without limitation, administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, to the extent such expenses are directly attributable to the ownership or operation of the Borrower and its Subsidiaries plus any reasonable and customary indemnification claims made by directors or officers of Parent or any Controlling Company attributable to the ownership or operations of Parent, XxxXx, the Borrower and its Subsidiaries; and to discharge its other permitted liabilities when due;
(C) to finance (or to make a Restricted Payment to any Controlling Company to finance) any Investment permitted to be made pursuant to Section 6.04; provided that (x) such Restricted Payment shall be made substantially concurrently with the closing or consummation of such Investment and (y) Parent or the applicable Controlling Company shall, immediately following the closing or consummation thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Loan Party other than Parent (or a Person that will become a Loan Party (other than Parent) upon receipt of such contribution) or (2) the merger (to the extent permitted in Section 6.04) of the Person formed or acquired into the Borrower or a Loan Party (other than Parent) in order to consummate such Investment;
(D) to pay (or to make a payment to any Controlling Company to enable it to pay) fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering not prohibited by this Agreement;
(E) the Borrower may make Restricted Payments to Parent (or to make a Restricted Payment to a Controlling Company to enable it to fund), not exceeding $10,000,000 in the aggregate during the term of the Agreement, to fund the repurchase or redemption of capital stock of Parent or a Controlling Company, in each case, held pursuant to and in accordance with stock option plans or other benefit plans or agreements for future, present or former directors, officers or employees of Parent, the Borrower and the other Subsidiaries (or any Immediate Family Member thereof); provided that the Borrower may make such Restricted Payments with respect to their Equity Interests any such director, officer or employee without regard to such restriction for consideration consisting of the proceeds of key man life insurance held by Parent, any Controlling Company, the Borrower or a Subsidiary regarding such director, officer of employee or pursuant to any right to acquire capital stock of Parent or a Controlling Company at a price not less than, or any right to the appreciation in value of such capital stock exceeding the fair market value of such capital stock;
(provided that if such F) to make Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must Payments expressly permitted to be made under this Section;
(G) to pay (or to make a Restricted Payment to any Controlling Company to enable it to pay) customary salary, bonus and other benefits payable to officers and employees of Parent or any Controlling Company to the holders extent such salaries, bonuses and other benefits are directly attributable to the ownership or operations of the Borrower and its Subsidiaries;
(H) to make regularly scheduled interest payments, fees, expenses and indemnification obligations as and when due in respect of the Senior Notes (including downstreaming of such proceeds to XxxXx to enable XxxXx to pay such amounts); and
(I) to pay (or to make a Restricted Payment to any Controlling Company to enable it to pay) amounts of the type described in Section 6.09(b) to the extent such payment would be permitted under such Section 6.09(b);
(iii) the Borrower may make non-cash repurchases of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within upon the meaning exercise of Section 291 stock options if such Equity Interests represent a portion of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses exercise price of such options or taxes to be paid in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower make cash payments in lieu of partial the issuance of fractional shares representing insignificant interests in its the Borrower or similar Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock warrants, options or warrants to permit other securities convertible into or exchangeable for capital stock in the issuance of only whole shares of Equity InterestsBorrower, Parent or any Controlling Person, as applicable; CREDIT AGREEMENT, Page 133and
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) by Borrower in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal not to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Permitted Distribution Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.;
(b) Such None of the Borrower or any Subsidiary will notmake or agree with the holder thereof to pay or make, nor will it permit directly or indirectly, any of its Restricted Subsidiaries to, make any cash payment or other distribution in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any material Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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, defeasance, cancellation or termination of any Restricted material Subordinated Indebtedness, exceptexcept for:
(i) replacementsregularly scheduled interest payments, refinancingsfees, amendments, supplements, modifications, extensions, renewals, restatements expenses and indemnification obligations as and when due in respect of any such Subordinated Indebtedness;
(ii) refinancings or refunding exchanges of Restricted any such Subordinated Indebtedness to for like or junior debt with the extent proceeds of other Indebtedness permitted by under Section 6.01;
(iiiii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion conversions of any Restricted such Subordinated Indebtedness to Equity Interests (of the Parent, any Controlling Person, the Borrower or any other than Disqualified Equity Interests)Subsidiary;
(iiiiv) additional payments or other distributions on account in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, any such Subordinated Indebtedness in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total AssetsAvailable Amount; provided that (x) (1) at the time no Event of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenantstherefrom;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an any AHYDO “applicable high yield discount obligationcatchup” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)payments.
Appears in 1 contract
Samples: Credit Agreement (PetroLogistics LP)
Restricted Payments; Certain Payments of Indebtedness. (ai) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to declare or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (icontingent or otherwise) such Person to do so, except (1) each of the Borrowers may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional units of such preferred Equity Interests or in units of its Equity Interests;
, (ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests Interests, (provided that if such Restricted Subsidiary is not wholly-owned by iii) the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, Borrowers may make other payments non-cash Restricted Payments pursuant to and in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 stock option plans or other incentive or benefit plans for managers, officers or employees of the German Stock Corporation Act (AktG) as well as distribute profits Borrowers and compensate losses in connection therewith;
(iii) to the extent constituting their Restricted PaymentsSubsidiaries, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases so long as no Event of Default has occurred and is continuing, the Loan Parties may declare and make (and incur any obligation to do so) Restricted Payments with the proceeds received from, or in exchange for, the substantially concurrent issue of new shares of their common stock or other common Equity Interests, (v) so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Company may honor any conversion request by Parent Borrower a holder of partial interests convertible Indebtedness and make cash payments in its Equity Interests for nominal amounts which are required to be repurchased lieu of fractional shares in connection with any such conversion, (vi) the Company may repurchase, redeem, defease or otherwise acquire or retire (and incur any obligation to do so) for value any Disqualified Stock of the Loan Parties with the Net Proceeds from a substantially concurrent issuance of Disqualified Stock of the Loan Parties (or from the proceeds of, or in exchange for) the substantially simultaneous issuance of common Equity Interests of the Loan Parties, (vii) purchases, repurchases, redemptions or other acquisitions or retirements for value of Equity Interest deemed to occur upon the exercise of stock options or warrants options, warrants, rights to permit the issuance of only whole shares of acquire Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement Interest or other acquisition or retirement for value of convertible securities if such Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the Interest represents a portion of the Yearly Limit from each exercise or exchange price thereof, and the Company may repurchase Equity Interests issued by it deemed to occur upon the cashless exercise of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” warrants issued on December 14, 2016 and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries Loan Parties may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by so long as the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after Payment Conditions have been satisfied at the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and time such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearmade.
(ba) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) (A) payment of regularly scheduled interest payments as and when due in respect of any Indebtedness permitted under Section 6.01, refinancingsregularly scheduled principal payments in respect of Indebtedness permitted under SectionSections 6.01(e) and 6.01(k) as and when due, amendments(B) any voluntary prepayments under the Term Loan Agreement or any prepayments pursuant to Section 2.04(b)(i) of the Term Loan Agreement as in effect on the Second Amendment Effective Date, supplementsin each case, modificationsso long as the Payment Conditions will have been satisfied at such time, extensionsor (C) any mandatory prepayments under SectionsSection 2.04(b)(ii) or 2.04(b)(iii) of the Term Loan Agreement as in effect on the Second Amendment Effective Date, renewalsin each case, restatements or refunding other than payments in respect of Restricted the Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) (A) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness, in each case in exchange for, or out transfer of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments the extent such sale or other distributions on account transfer is permitted by the terms of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total AssetsSection 6.05; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135and
(v) payments or other distributions on account payment of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Swiftwater Earnout.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make 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) such Person the Borrower may declare and make Restricted Payments pay dividends with respect to its Equity Interests common stock payable solely in additional shares of its Equity Interests;common stock, and, with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock,
(ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their capital stock, membership or partnership interests or other similar Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;Interests,
(iii) the Borrower may declare and pay dividends or make other distributions to Holdings, the proceeds of which are used by Holdings or a Parent to purchase or redeem Equity Interests of Holdings or a Parent acquired by employees, consultants or directors of Holdings, the Borrower or any Restricted Subsidiary upon such Person’s death, disability, retirement or termination of employment; provided that the aggregate amount of such purchases or redemptions under this clause (iii) shall not exceed $11,500,000 in any fiscal year (and, to the extent constituting Restricted Paymentsthat the aggregate amount of purchases or redemptions made in any fiscal year pursuant to this clause (iii) is less than $11,500,000, the amount of such difference may be carried forward and used for such purpose in the following fiscal year) and $34,500,000 in the aggregate,
(iv) the Borrower may make Restricted Payments to Holdings to be used by Holdings solely to pay (or to allow a Parent to pay) its franchise taxes and other fees required to maintain its corporate existence and to pay for general corporate and overhead expenses (including salaries and other compensation of employees) and other expenses in its capacity as the parent of Borrower incurred by Holdings or a Parent in the ordinary course of its business or used to pay fees and expenses (other than to Affiliates) relating to any unsuccessful debt or equity financing; provided that such Restricted Payments shall not exceed $5,750,000 in any fiscal year,
(v) with respect to any taxable period (or portion thereof) with respect to which the Borrower and/or any of its Subsidiaries are members of a consolidated, combined or similar income tax group for U.S. federal and/or applicable state or local income tax purposes of which Holdings or a Parent is the common parent (a “Tax Group”), the Borrower may make Restricted Payments to Holdings (or any such Parent) in an amount necessary to enable Holdings (or such Parent, as applicable) to pay the portion of any consolidated, combined or similar U.S. federal, state or local income Taxes (as applicable) of such Tax Group for such taxable period that are directly attributable to the taxable income of the Borrower and/or its applicable Subsidiaries; provided that the amount of any such Restricted Payments pursuant to this clause (v) shall not exceed the amount of such Taxes that the Borrower and/or its applicable Subsidiaries would have paid had the Borrower and/or such Subsidiaries, as applicable, been a stand-alone corporate taxpayer (or a stand-alone corporate group); provided, further, that the payment of Restricted Payments pursuant to this clause (v) in respect of an Unrestricted Subsidiary shall be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to the Borrower or any of its Restricted Subsidiaries for such purpose,
(vi) cashless repurchases of Equity Interests of Holdings deemed to occur upon exercise of stock options or warrants or upon vesting of common stock, if such Equity Interests represent a portion of the exercise price or withholding obligations of such options, warrants or common stock,
(vii) the Borrower and its Restricted Subsidiaries may enter into transactions expressly make a payment of any dividend or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement (provided that such date of declaration or giving of notice of redemption shall be deemed to be a Restricted Payment and shall utilize capacity under another provision of this Section 6.08),
(viii) the Borrower and its Restricted Subsidiaries may make payments, directly or indirectly, to Holdings or any other direct or indirect parent company of the Borrower to pay management, consulting and advisory fees or any other amounts payable to any Permitted Holder to the extent permitted by Sections 6.03, 6.04, 6.05 or Section 6.09;,
(ivix) repurchases by Parent [reserved],
(x) the Borrower and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount not exceeding the Available Amount immediately prior to the time of partial interests in its Equity Interests for nominal amounts which are required the making of such Restricted Payment; provided that (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately after giving effect to be repurchased such Restricted Payment on a Pro Forma Basis, the Total Net Leverage Ratio does not exceed 5.75:1.00,
(xi) the Borrower may make Restricted Payments to Holdings to pay any non-recurring fees, cash charges and cost expenses incurred in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of or Indebtedness, in each case only to the Parent extent that such transaction is not consummated,
(xii) the Borrower and its Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount not to exceed $46,000,000 (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of together with the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner aggregate amount of any prepayments, redemptions, defeasances, repurchases or other retirement of the foregoingSpecified Indebtedness under Section 6.08(b)(iv); provided that (A) at the time no Event of any such repurchase, retirement or other acquisition or retirement for value no Default exists has occurred and is continuing or would result, result therefrom,
(Bxiii) the aggregate amount Borrower and its Restricted Subsidiaries may make other Restricted Payments; provided that (x) no Event of Restricted Payments made under this clause Default has occurred and is continuing or would result therefrom and (vy) in any fiscal year immediately after giving effect to such Investment on a Pro Forma Basis, the Total Net Leverage Ratio does not exceed 4.00:1.00,
(x) $10,000,000 (the “Yearly Limit”) plus (yxiv) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Restricted Subsidiaries may make any Restricted Payment in connection with payments for the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of options, rights or warrants to the extent such Equity Interests to pay taxes;represent a portion of the exercise price of those options, rights or warrants,
(ixxv) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments cash payments in an aggregate amount that, together with (A) lieu of fractional shares issuable as dividends on preferred stock or upon the aggregate amount conversion of all other Restricted Payments made by any convertible debt securities of the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ixSubsidiaries,
(xvi) after the date hereof[reserved], and
(Bxvii) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; Payments of up to $294,957,210.30 in connection with the U.S. Healthworks Transactions, provided that (A) (x) as cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from members of management of the date Borrower, any of the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Borrower’s direct or indirect parent companies will not be deemed to constitute a Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearPayment.
(b) Such The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, make make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of any purchase, redemption, retirement, acquisition, cancellation principal of or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”)interest on, or any other 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 of, any Permitted Debt (other than Permitted Debt secured on a prior Lien or pari passu basis with the Obligations) or any Subordinated Indebtedness (other than the intercompany loans among Restricted Subsidiaries and the Borrower) (“Specified Indebtedness”), except:
(i) replacementspayment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancingsother than, amendmentsin the case of Subordinated Indebtedness, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to as prohibited by the extent permitted by Section 6.01;subordination provisions thereof,
(ii) (A) payments the conversion or exchange of any Specified Indebtedness into, or redemption, repurchase, prepayment, defeasance or other distributions on account retirement of any such Indebtedness with the Net Proceeds of the purchase, redemption, retirement, acquisition, cancellation issuance by Holdings or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale a Parent of Equity Interests (other than Disqualified Equity Interestsor capital contributions in respect thereof) of Holdings or a Parent after the Parent Borrower (it being understood Closing Date to the extent not Otherwise Applied, plus any fees and expenses in connection with such amounts will not increase the Available Amount)conversion, exchange, redemption, repurchase, prepayment, defeasance or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);retirement,
(iii) payments or other distributions on account of the purchaseprepayment, redemption, retirementdefeasance, acquisition, cancellation repurchase or termination other retirement of Restricted Indebtedness, in Specified Indebtedness for an aggregate amount purchase price not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as no Event of the date of such payment or distribution Default has occurred and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist is continuing or would result therefrom and (y) immediately after giving effect to such prepayment, redemption, defeasance, repurchase or other retirement of Specified Indebtedness on a Pro Forma Basis, the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; andTotal Net Leverage Ratio does not exceed 5.75:1.00,
(viiv) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments additional prepayments, redemptions, defeasances, repurchases or other retirement of principal Specified Indebtedness in an aggregate amount not to exceed $46,000,000 (together with the aggregate amount of any Restricted Payments made under clause Section 6.08 (a)(xii)); provided that no Event of Default has occurred and payments is continuing or would result therefrom,
(v) other prepayments, redemptions, defeasances, repurchases or other retirement of interestSpecified Indebtedness; provided that (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately after giving effect to such prepayment, feesredemption, expenses and indemnification defeasance, repurchase or similar obligations in respect other retirement of Restricted Specified Indebtedness when dueon a Pro Forma Basis, and in the case Total Net Leverage Ratio does not exceed 4.00:1.00,
(vi) refinancings of Subordinated Indebtedness, Indebtedness to the extent not prohibited by the subordination provisions thereof Indebtedness being incurred in connection with such refinancing is a Permitted Refinancing, and
(if applicable)vii) the prepayment, redemption, defeasance, repurchase or other retirement of Specified Indebtedness with Declined Proceeds.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower Tenant will not, nor will it permit any of its Loan Party or any Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or to make, or agree to make any redemptions or repurchases with respect to its capital stock, or incur any obligation (contingent or otherwise) to do so, except (i) such Person each of Holdings and Tenant may declare and make Restricted Payments with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests;
, and, with respect to its preferred Equity Interests, payable solely in additional shares of such preferred Equity Interests or in shares of its common Equity Interests, (ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent BorrowerInterests, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Each of Holdings and Tenant may make Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) exceeding $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for 5,000,000 during any fiscal year, the Yearly Limit applicable pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings, Tenant and its Restricted Subsidiaries, (iv) each of Holdings and Tenant may pay dividends or make distributions to the previous fiscal years persons holding its Equity Interests in an aggregate amount such that such persons may pay (x) franchise Taxes and other fees, Taxes and expenses to maintain their legal existence and (y) federal, state and local income Taxes to the extent attributable to Holdings and its Subsidiaries or to Tenant and its Subsidiaries as the case may be, provided that in all events the amounts paid pursuant to clause (y) shall be deemed amounts sufficient to have been utilized first by any Restricted Payments made pay the direct obligations of such persons for such Taxes and obligations of Tenant and Holdings under this the Tax Sharing Agreement, provided, however, that (aa) the amounts paid under clause (vy) shall not exceed the amount that would be payable, on a consolidated or combined basis, were Holdings the common parent of a separate federal consolidated group or state combined group including Tenant and its Subsidiaries and (bb) in such fiscal year) plus (z) the case of Taxes attributable to the Unrestricted Subsidiary, an amount equal to the cash proceeds amount of such tax payment has been received by Tenant from the sale Unrestricted Subsidiary prior to such payment being made; and (v) so long as there exists no Event of Default, each of Holdings and Tenant may pay dividends or make distributions to the persons holding its Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount thatsuch that such persons may pay officers, together with (A) directors and corporate overhead expenses incurred in the ordinary course of business up to a maximum aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of $2,500,000 in any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower Tenant will not, nor will it permit any of its Loan Party or any Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Term Loan Documents and the ABL Loan Documents;
(ii) payment of regularly scheduled interest and principal payments and any mandatory prepayments or redemptions provided no Default has occurred and is continuing hereunder, refinancingsas and when due in respect of any Indebtedness, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account 49.01 of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial CovenantsPart II;
(iv) payments or other distributions on account prepayments made with the proceeds of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00equity issuances; CREDIT AGREEMENT, Page 135and
(v) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchasevoluntary sale or transfer of the property or assets securing such Indebtedness.
(c) In addition to Restricted Payments permitted under Section 49.08(a) of Part II and payments on or in respect of Indebtedness permitted under Section 49.08(b) of Part II, redemption, retirement, acquisition, cancellation any Loan Party may make Restricted Payments and payments of or termination in respect of Restricted Indebtedness, in an aggregate amount that, together with (A) to the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto extent no Default shall exist or result therefrom or (y) no Event of Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, is continuing at the date of declaration or notice payment thereof (or would result therefrom), in an amount up to (i) $2,000,000 in any fiscal year plus (ii) 50% of the remaining cumulative Excess Cash Flow since the date hereof (after giving effect to any prepayments required to be made pursuant to Section 2.11(c) of the Term Loan Credit Agreement, any investments, loans or advances made pursuant to Section 49.04(o)(iii) of Part II, any previous Restricted Payments or payments made pursuant to this clause (c)(ii)); provided, however, that, on the date of any such dividenddeclaration or payment utilizing this clause (c), payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower Tenant and its Restricted Subsidiaries may make regularly scheduled payments shall be in pro forma compliance with Section 48.09 of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)Part II.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, declare or make make, directly or indirectly, any Restricted Payment, except:
(i) such Person Borrower may declare and make Restricted Payments pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made on a pro rata basis to the holders of its Equity Interests ratably according to their interestsInterests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133;
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viiixxxx) repurchase xxxxxxxxxx of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declarationtherefrom; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 275,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134and
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis as of the end of the most recent fiscal quarter for which financial statements were required to be delivered under Section 5.01(a) or (b) is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 2.252.50 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment payment, directly or indirectly, in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or Indebtedness, the NewExisting New Senior Unsecured Notes (including Notes, or any Indebtedness issued in lieu of or representing a refinancing or replacement thereofof any Indebtedness in respect of the Pari Passu Notes outstanding on the Effective Date (but, for the avoidance of doubt not the Pari Passu Notes existing on the Effective Date themselves) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted IndebtednessIndebtedness or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding refinancings of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments any payment or other distributions distribution in respect of principal or interest on, or payment or other distribution on account of the purchase, redemption, retirement, acquisition, cancellation or termination of of, Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity InterestsInterests and so long as no Change of Control would result therefrom) of the Parent Borrower (it being understood such amounts will not increase the Available Amount)Borrower, or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of of, Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets25,000,000; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or and (2y) no Default shall exist or would result therefrom on at the date such Person provides notice time of such payment or other distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect theretothereto and to any borrowing in connection therewith, the Parent Borrower is in compliance, on a Pro Forma Basispro forma basis, with the Financial Covenants;; CREDIT AGREEMENT, Page 124
(iv) payments or other distributions in respect of principal or interest on, or payment or other distribution on account of the purchase, redemption, retirement, acquisition, cancellation or termination of of, Restricted Indebtedness ifIndebtedness, if on a Pro Forma Basis, Basis the Secured Leverage Ratio as of the end of the most recent fiscal quarter for which financial statements were required to be delivered under Section 5.01(a) or (b) is less than 4.00 the greater of (A) 2.75 to 1.00; CREDIT AGREEMENT1.00 and (B) 0.50 to 1.00 less than the applicable Secured Leverage Ratio under the Financial Covenants for the most recently ended fiscal quarter for which financial statements have been delivered at the time of such payment or other distribution, Page 135and in each case, the Parent Borrower has delivered to the Administrative Agent a certificate of a Financial Officer, together with all relevant financial information reasonably requested by the Administrative Agent demonstrating compliance with this clause (iv);
(v) payments or other distributions on account in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of of, Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such payment payments or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such noticetherefrom; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement[reserved]; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of principal, interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when dueIndebtedness, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)thereof.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
except (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries the Borrower may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders its capital stock payable solely in additional shares of its Equity Interests common stock, (ii) Subsidiaries may declare and pay dividends ratably according to their interests) and, solely with respect to Subsidiaries organized their capital stock, provided that no distribution referred to in Germanythis clause (ii) shall be permitted to be made by any Special Purpose Subsidiary if any Default or Event of Default shall have occurred and be continuing or would result therefrom, (iii) if no Event of Default has occurred and is continuing or would result therefrom, the Borrower may make other payments Restricted Payments, not exceeding $10,000,000 during any fiscal year, pursuant to and in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 stock option plans or other benefit plans for management or employees of the German Borrower and its Subsidiaries, (iv) if no Event of Default has occurred and is continuing or would result therefrom, (A) the Borrower may make Restricted Payments to Holdings to fund, as and when due, payments of regularly scheduled cash dividends on Existing Preferred Stock Corporation Act (AktGand Holdings may pay such dividends with the proceeds of such Restricted Payments to it), provided no such Restricted Payment shall be made by the Borrower more than 15 days prior to the payment date for any such cash dividend on Existing Preferred Stock; and (B) the Borrower may make Restricted Payments to Holdings to fund, as well as distribute profits and compensate losses when due, payments in connection therewith;
respect of taxes, audit fees, directors and officers insurance premiums and other administrative expenses incurred by Holdings (iii) to the extent constituting Restricted Payments, fairly allocable to the Parent business of the Borrower and its Restricted the Subsidiaries rather than the business of the Unrestricted Subsidiaries) in an aggregate amount not to exceed $3,000,000 (or such higher amount as the Administrative Agent may enter into transactions expressly permitted by Sections 6.03agree) during any fiscal year of the Borrower, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) if no Event of Default has occurred and is continuing or would result therefrom, the Parent Borrower may pay make Restricted Payments to Holdings for the repurchase, retirement purpose of enabling Holdings to repurchase or redeem shares of Series A Preferred Stock or other acquisition Capital Stock of Holdings, and Holdings may use the proceeds of such Restricted Payments to effect repurchases or retirement for value redemptions of Equity Interests Series A Preferred Stock or other Capital Stock of the Parent Borrower (including related stock appreciation rights or similar securities) held by any futureHoldings, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior after giving effect to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist related repurchase or would result therefrom or redemption, (x) Current Liquidity is not less than $100,000,000 and (y) no Default shall exist or would result therefrom on Holdings, the date of declaration of such Restricted Payment Borrower and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), the Subsidiaries are in no event shall more than $300,000,000 in Restricted Payments be made Pro Forma Compliance with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration Financial Covenants and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater amount of such Restricted Payments paid to Holdings for the purpose of repurchasing or redeeming Capital Stock other than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then Series A Preferred Stock shall not in any event exceed $25,000,000 in the aggregate amount and (vi) if no Event of Default has occurred and is continuing or would result therefrom, the Borrower may make Restricted Payments made under this clause (x) to Holdings to fund, as and when due, payments of regularly scheduled interest and principal in respect of a fiscal year (including any Qualifying Subordinated Indebtedness incurred by Holdings that is permitted by Section 6.01(a), other than payments prohibited by the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearsubordination provisions thereof.
(b) Such Holdings and the Borrower will not, nor and will it not permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 cancelation or termination of any Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness (including regularly scheduled rent payments in respect of any Capital Lease Obligations) permitted by
Section 6.01 (a), refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests6.01(a);
(iiiiv) payment of secured Indebtedness permitted by Section 6.01(a) that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) returns of deposits or advances in the ordinary course of business;
(vi) payments under Guarantees of obligations of Persons other than Holdings, the Borrower and the Subsidiaries that are permitted under Section 6.01; and
(vii) repurchases, retirements, redemptions or other distributions on account prepayments of the purchaseExisting Subordinated Notes or Senior Notes, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time no Event of any such payment or other distribution, no Default shall have has occurred and be is continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and therefrom, (y) after giving effect thereto, Holdings, the Parent Borrower is and the Subsidiaries are in compliance, on a Pro Forma Basis, Compliance with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof Covenants and (Cz) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and immediately after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on and to the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividendamounts required to be paid in connection therewith), payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will Current Liquidity is not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable)less than $100,000,000.
Appears in 1 contract
Samples: Credit Agreement (Triton PCS Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares Subsidiaries of its Equity Interests;
(ii) Restricted Subsidiaries the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests Interests, (ii) provided no Default or Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments to the Parent, provided that if (A) the proceeds of such Restricted Subsidiary is not wholly-owned by the Parent BorrowerPayments are used to repurchase, such dividends must be made to the holders of its redeem, or otherwise acquire or retire for value Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Ultimate Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Ultimate Parent Borrower or of its Subsidiaries (or the estateService Company or their respective estates, heirs, family members, spouse spouses or former spouse spouses pursuant to the terms of any of employee equity subscription agreement, stock option agreement or similar agreement, (B) (x) any Restricted Payments used to effect such repurchases, redemptions, acquisitions or retirements are made not earlier than ten Business Days prior to the foregoingdate when such Equity Interests are repurchased, redeemed, acquired or retired, if such repurchase, redemption, acquisition or retirement is made and (y) in if such fiscal year;
Restricted Payments are not used for such repurchase, redemption, acquisition or retirement, the proceeds therefrom shall be returned to the Borrower as a capital contribution within ten Business Days from the date such Restricted Payment was made, (viC) the repurchase of aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests of in any fiscal year pursuant to this clause (ii) (other than (1) any such Equity Interests repurchased, redeemed, acquired or retired in compensation for any taxes due or payable by the holder thereof, and (2) any such Equity Interests that are deemed repurchased, redeemed, acquired or retired by the Ultimate Parent Borrower that occurs upon in connection with the cashless exercise of stock options, options or warrants by the holder thereof in connection with the payment of all or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction portion of the exercise price of such Equity Interests;
options or warrant) will not exceed $1,000,000 per year and (viiD) such Equity Interests shall only be repurchased, redeemed, acquired or retired in connection with the death, resignation or retirement of, or settlement of a dispute with, any such Person, (iii) Restricted Payments in amounts as shall be necessary to make Tax Payments; provided that all Restricted Payments made pursuant to this clause (iii) are used by the recipient for the purpose specified in this clause (iii) within 30 days of receipt thereof, (iv) provided no Default or Event of Default is continuing or would result therefrom, the Borrower may from time to time pay cash dividends or distributions to the Parent in an amount not in excess of the lesser of (x) the Ultimate Parent Annual Cash Interest Amount and (y) the regularly scheduled cash interest payable (taking into account the Ultimate Parent PIK Election made pursuant to Section 6.17(j)) on the Restructuring Notes (or any Additional Notes incurred to refinance such Restructuring Notes) during the next period of ten Business Days, provided, however, that (A) any such dividends or distributions relating to any such cash interest payment must be paid not earlier than ten Business Days prior to the date when such cash interest is required to be paid by the Ultimate Parent and the proceeds must (except to the extent prohibited by applicable subordination provisions) be applied by the Ultimate Parent, to the payment of such interest when due, (B) the Borrower and its Subsidiaries shall be in Pro Forma Compliance after giving effect to the payment of any such dividends or distributions pursuant to this clause (iv) and (C) in no event may make the amount of any Restricted Payment in connection with such dividend or distribution made pursuant to this clause (iv) relating to any such cash interest payment exceed 36% of the Rothsay Acquisition as contemplated amount of such cash interest paid by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
Ultimate Parent when due, (viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ixv) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments as part of the Shared Services Transactions and (vi) the Borrower may make Restricted Payments to the Parent in an aggregate amount thatnot to exceed $2,000,000 during any fiscal year of the Borrower, together with provided that (A) the aggregate amount no Default or Event of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereofDefault is continuing or would result therefrom, (B) the aggregate amount of all Investments Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(ithis clause (vi) after shall not exceed $5,000,000 over the date hereof and term of this Agreement, (C) the aggregate amount Ultimate Parent shall apply such Restricted Payments within 30 days of all payments or distributions receipt thereof and only to fund general corporate expenses permitted hereunder and (D) no Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(vthis clause (vi) after the date hereof, shall not exceed the Available Amount; provided that be used to (x) as of effect the date repurchase, or the making of any such Restricted Payment and after giving effect thereto no Default shall exist payments in respect, of Restructuring Notes or would result therefrom Additional Notes or (y) no Default shall exist make any payment to or would result therefrom on Investment in any Affiliate other than the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as or a Subsidiary of the date Borrower (or any director, officer or employee of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearAffiliate).
(b) Such The Borrower will not, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacementspayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted subordinated Indebtedness to the extent prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiiv) (A) payments or other distributions on account payment of secured Indebtedness that becomes due as a result of the purchase, redemption, retirement, acquisition, cancellation voluntary sale or termination of Restricted Indebtedness, in each case in exchange for, or out transfer of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood property or assets securing such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)Indebtedness;
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account prepayment of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, Capital Lease Obligations in an aggregate cumulative amount that, together with from and after the Closing Date not exceeding $5,000,000;
(Avi) payment of any Indebtedness owing to the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries Service Company arising pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such noticeShared Services Transactions; and
(vivii) payment-payment of any Indebtedness owing to the Borrower or any Subsidiary Loan Party.
(c) The Borrower will not, and will not permit any Subsidiary to, furnish any funds to, make any Investment in-kind interest with respect , or provide other consideration to any other Person for purposes of enabling such Person to, or otherwise permit any such Person to, make any Restricted Indebtedness permitted Payment or other payment or distribution restricted by this Agreement;Section that could not be made directly by the Borrower in accordance with the provisions of this Section.
(viid) payments Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, the Loan Parties shall be permitted to make all distributions on account of intercompany Subordinated Indebtedness not prohibited required to be made by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment Loan Parties on or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, Closing Date (pursuant to the extent not prohibited by Reorganization Plan and the subordination provisions thereof (if applicableConfirmation Order).
Appears in 1 contract
Samples: Credit Agreement (Dex Media, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(i) such Person each Subsidiary may declare and make Restricted Payments with respect to its the Borrower or any other Subsidiary; provided that in the case of any such Restricted Payment by a Subsidiary that is not a Wholly Owned Subsidiary of the Borrower, such Restricted Payment is made to the Borrower and/or any Subsidiary and to each other owner of Equity Interests payable solely in additional shares of its such Subsidiary based on their relative ownership interests of the relevant class of Equity Interests;
(ii) Restricted Subsidiaries the Borrower and each Subsidiary may declare and pay dividends with respect to their make dividend payments or other distributions payable solely in the Equity Interests (provided that if of such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithPerson;
(iii) Restricted Payments made on or substantially contemporaneously with the Effective Date to consummate the extent constituting Restricted PaymentsTransactions, including to finance the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09payment of Transaction Costs;
(iv) repurchases of Equity Interests in the Borrower or any Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price or withholding taxes payable in connection with the exercise of such options or warrants or other incentive interests;
(v) Restricted Payments used to redeem, acquire, retire, repurchase or settle the Borrower’s Equity Interests (or any options, warrants, restricted stock or stock appreciation rights or similar securities issued with respect to any such Equity Interests) held directly or indirectly by Parent current or former officers, managers, consultants, members of the Board of Directors, employees or independent contractors (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of the Lead Borrower (or any direct or indirect parent thereof), and its Subsidiaries (in each case, other than the executive management (i.e., the CEO, the CFO, any executive vice presidents and any similar executive management positions)), upon the death, disability, retirement or termination of partial interests employment of any such Person or otherwise in accordance with any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement in an aggregate amount after the Effective Date not to exceed $11,500,000 in any fiscal year of the Lead Borrower with unused amounts in any fiscal year being carried over solely to the next succeeding fiscal years; provided that such amount in any fiscal year may be increased by (1) an amount not to exceed the cash proceeds of key man life insurance policies received by the Borrower or the Subsidiaries after the Effective Date, or (2) the amount of any bona fide cash bonuses otherwise payable to members of the Board of Directors, consultants, officers, employees, managers or independent contractors the Borrower or any Subsidiary that are foregone in return for the receipt of Equity Interests, the fair market value of which is equal to or less than the amount of such cash bonuses, which, if not used in any year, may be carried forward solely to the next subsequent fiscal year; provided further that cancellation of Indebtedness owning to the Borrower or any Subsidiary from members of the Board of Directors, consultants, officers, employees, managers or independent contractors (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of the Borrower or any Subsidiary in connection with a repurchase of Equity Interests of the Borrower will not be deemed to constitute a Restricted Payment for purposes of this Section 6.07 or any other provisions of this Agreement.
(vi) [reserved];
(vii) in addition to the foregoing Restricted Payments, the Borrower may make additional Restricted Payments, in an aggregate amount, when taken together with the aggregate amount of loans and advances previously made pursuant to Section 6.04(m) in lieu of Restricted Payments permitted by this clause (vii), not to exceed the sum of (A) the Available Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of such Restricted Payment, plus (B) the Available Equity Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of such Restricted Payment; provided that any Restricted Payment made in reliance on preceding clause (A) shall be subject to, (x) no Event of Default having occurred and be continuing or resulting therefrom (tested at the time of declaration of such Restricted Payment) and (y) before and after giving Pro Forma Effect to such Restricted Payment, on a Pro Forma Basis, the Total Net Leverage Ratio being less than or equal to 3.21 to 1.00 as of the end of the most recently ended Test Period (tested at the time of declaration of such Restricted Payment);
(viii) redemptions in whole or in part of any of its Equity Interests for nominal amounts which are required another class of its Equity Interests or with proceeds from substantially concurrent equity contributions;
(ix) payments made or expected to be repurchased made in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options or warrants to permit and the issuance vesting of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133restricted stock and restricted stock units;
(vx) the Parent Borrower may Restricted Payments to pay for the repurchasecash in lieu of fractional Equity Interests in connection with any dividend, retirement split or combination thereof or any Permitted Acquisition (or other acquisition similar Investment) and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(xi) payments made or retirement for value expected to be made by the Borrower or any Subsidiary in respect of withholding or similar Taxes payable upon exercise of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former employee, director, officer, member of management, employee manager or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner their respective controlled Affiliates or former domestic partner of any of the foregoing); provided that (Apermitted transferees) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase repurchases of Equity Interests deemed to occur upon the non-cash exercise of stock options or warrants if such Equity Interests to pay represent a portion of the exercise price of such options or warrants or required withholding or similar taxes;
(ixxii) the Parent Borrower and its Restricted Subsidiaries may make [Reserved];
(xiii) [Reserved];
(xiv) [Reserved];
(xv) additional Restricted Payments in an aggregate amount that, together with not to exceed $138,000,000; provided that after giving effect to such Restricted Payment no Event of Default exists or would result therefrom;
(xvi) [Reserved]; and
(xvii) additional Restricted Payments (other than Restricted Payments of Equity Interests of any Wholly Owned Subsidiary); provided that after giving effect to such Restricted Payment (A) on a Pro Forma Basis, the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant Total Net Leverage Ratio is equal to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant or less than 2.96 to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration 1.00 and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 no Event of Default exists or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearwould result therefrom.
(b) Such The Borrower will not, nor and will it not permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”)Junior Financing, or any other 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 Restricted IndebtednessJunior Financing, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, in each case, except:
(i) replacementspayment of regularly scheduled interest and principal payments, refinancingsmandatory offers to repay, amendmentsrepurchase or redeem, supplementsmandatory prepayments of principal, modificationspremium and interest, extensionsand payment of fees, renewalsexpenses and indemnification obligations, restatements or refunding with respect to such Junior Financing, other than payments in respect of Restricted any Junior Financing prohibited by the subordination provisions thereof;
(ii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ii1) (A) payments or other distributions on account the conversion of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of any Junior Financing to Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower and (it 2) any payment that is intended to prevent any Junior Financing from being understood treated as an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code;
(iv) prepayments, redemptions, purchases, defeasances and other payments in respect of any Junior Financing; provided that after giving effect to such amounts will not increase prepayments, redemptions, purchases, defeasances or other payments (A) on a Pro Forma Basis, the Available Amount), Total Net Leverage Ratio is equal to or less than 2.96 to 1.00 and (B) the conversion no Event of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests)Default exists or would result therefrom;
(iiiv) payments made in connection with, or in order to consummate, the Transactions;
(vi) (A) prepayments, redemptions, purchases, defeasances and other distributions on account payments in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, any Junior Financing in an aggregate amount not to exceed the greater of $25,000,000 92,000,000 and 128.75% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, EBITDA on a Pro Forma Basis, with Basis for the Financial Covenantsmost recently ended Test Period plus (B) the amount of Restricted Payments that may be made pursuant to Section 6.07(a)(xv) at such time;
(ivvii) additional prepayments, redemptions, purchases, defeasances and other payments or other distributions on account in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00any Junior Financing; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) provided that the aggregate amount of all such prepayments, redemptions, purchases, defeasances and other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to in reliance on this Section 6.08(b)(v) after the date hereof, clause (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereofvii), shall not exceed the sum of (A) the Available AmountAmount that is Not Otherwise Applied as in effect immediately prior to the time of making of such prepayments, redemptions, purchases, defeasances and other payments, plus (B) the Available Equity Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of such prepayments, redemptions, purchases, defeasances and other payments; provided that any prepayments, redemptions, purchases, defeasances and other payments made in reliance on preceding clause (xA) shall be subject to, before and after giving Pro Forma Effect to such prepayments, redemptions, purchases, defeasances and other payments, the Total Net Leverage Ratio being less than or equal to 3.21 to 1.00 as of the date end of the most recently ended Test Period (tested at the time of distribution or delivery of any irrevocable notice of prepayment, redemption, repurchase or defeasance, as applicable, in respect thereof);
(viii) the prepayment of any Junior Financing owed to the Borrower or a Subsidiary or the prepayment of any Permitted Refinancing of such payment or distribution and after giving effect thereto Indebtedness with the proceeds of any other Junior Financing; provided that no Default Loan Party shall exist or result therefrom or make any prepayment of any Junior Financing owed to any Subsidiary that is not a Loan Party pursuant to this clause (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such noticeviii); and
(viix) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) prepayments, redemptions, purchases, defeasances and other payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when dueany Junior Financing within one year of the scheduled maturity of such Junior Financing; provided, that after giving effect to such prepayments, redemptions, purchases, defeasances and in the case other payments, no Event of Subordinated IndebtednessDefault under paragraph (a), to the extent not prohibited by the subordination provisions thereof (if applicableb), (h) or (i) of Section 7.01 exists or would result therefrom.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Franchise Group, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries Holdings may declare and pay dividends with respect to their Equity Interests its common or preferred stock payable solely in additional shares of its common or preferred stock, (provided ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that if such is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, a Loan Party may make Restricted Payments to any other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
Subsidiary, (iii) the Borrower may make distributions to the extent constituting Restricted PaymentsHoldings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Parent Borrower Manager or the Borrower, as the case may be, and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased incurred primarily in connection with the exercise business of stock options the Borrower, so long as no Default shall have occurred and is continuing or warrants would occur as a result thereof, (iv) the Borrower may make distributions to permit Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the issuance operations of only whole shares the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of Equity Interests; CREDIT AGREEMENTa consolidated group, Page 133
(v) so long as the Parent Borrower may pay for Distribution Conditions have been satisfied (as determined by the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of Administrative Agent in its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (Areasonable discretion) at the time of, and with respect to, any Restricted Payment not otherwise permitted by the foregoing clauses (i) through (iv), the Borrower may make such Restricted Payment to Holdings and Holdings may make such Restricted Payment to holders of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, Equity Interests in Holdings so long as (B1) the aggregate amount of Restricted Payments made under pursuant to this clause (v) in any fiscal year after the Effective Date does not exceed the sum of (x) $10,000,000 (the “Yearly Limit”) 20,000,000 plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of any such Restricted Payment Payments made at such time as the Additional Distribution Conditions have been satisfied, and after giving effect thereto no Default shall exist or would result therefrom or (y2) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days only with the proceeds of cash on hand of the Loan Parties and not with the proceeds of Loans[intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such declarationcash dividends in the Borrower; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtednessthat, in each case in exchange forsuch case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or out of otherwise acquire its common or preferred Equity Interests with the net proceeds of, received from the substantially concurrent sale issuance of new common or preferred Equity Interests (other than Disqualified Equity Interests) or where the consideration is the cancellation of the Parent Borrower (it being understood such amounts will not increase the Available Amount)Indebtedness owed to any Loan Party; , or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries Permitted J/Vs may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, Payments to the extent not prohibited by the subordination provisions thereof (if applicable).holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.
Appears in 1 contract
Samples: Credit Agreement (Potbelly Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any domestic Subsidiary to declare or pay any dividend (other than dividends payable solely in common stock of its Restricted Subsidiaries tothe Person making such dividend) on, declare or make any Restricted Paymentpayment on account of, except:
(i) such Person may declare and make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make or set apart assets for a sinking or other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Paymentsanalogous fund for, the Parent Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03purchase, 6.04redemption, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchasedefeasance, retirement or other acquisition or retirement for value of of, any Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower Loan Party or any of its Subsidiaries (Subsidiary, whether now or the estatehereafter outstanding, heirsor make any other distribution in respect thereof, family memberseither directly or indirectly, spouse, former spouse, domestic partner whether in cash or former domestic partner property or in obligations of any of the foregoingLoan Party or any Subsidiary (collectively, “Restricted Payments”); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;except that:
(via) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries domestic Subsidiary may make Restricted Payments in an aggregate amount that, together with (A) to the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amountany wholly owned Subsidiary Guarantor; provided that (x) as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.and
(b) Such Borrower will not, nor will it permit any so long as no Default or Event of its Restricted Subsidiaries to, make any payment in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower (it being understood such amounts will not increase the Available Amount), or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect theretocontinuing, the Parent Borrower is in compliancemay purchase its common stock or common stock options from present or former officers or employees of any Loan Party or any Subsidiary upon the death, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation disability or termination of Restricted Indebtedness ifemployment of such officer or employee, on a Pro Forma Basisprovided, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) that the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to under this Section 6.08(b)(v) after the date hereof, clause (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ixb) after the date hereof and (C) the aggregate amount net of all Investments made any proceeds received by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, hereof in connection with resales of any common stock or common stock options so purchased) shall not exceed $250,000 in any fiscal year of the Available Amount; Borrower;
(c) so long as Administrative Agent has not (i) terminated the Commitments or (ii) declared all of the obligations hereunder immediately due and payable, in each case, pursuant to Article VII hereof or otherwise, the Borrower may pay a dividend in connection with the IPO, provided that (x) as of such dividend is payable solely with proceeds from the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such noticeIPO; and
(vid) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments so long as no Event of Default exists or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments would result therefrom, and so long as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoingBorrower remains a limited liability company, the making of any dividend, payment Borrower may pay dividends or other distribution or make distributions to its members in an aggregate amount not greater than the consummation of any irrevocable redemption within 60 days after the date of declaration of amount necessary for such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower members to pay their actual state and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations United States federal income tax liabilities solely in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited income earned by the subordination provisions thereof (if applicable)Borrower.
Appears in 1 contract
Samples: Credit Agreement (Superior Offshore International Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(i) such Person each of Holdings and the Company may declare and pay dividends or make Restricted Payments other distributions with respect to its Equity Interests payable solely in additional shares of its Equity InterestsInterests (other than Disqualified Equity Interests not permitted by Section 6.01);
(ii) Restricted Subsidiaries may declare and pay dividends or make other distributions ratably with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewithInterests;
(iii) to the extent constituting Restricted Payments, the Parent Borrower Company and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 make Restricted Payments to Holdings (and Holdings may make Restricted Payments to any direct or 6.09;
(ivindirect parent thereof) repurchases by Parent Borrower the proceeds of partial interests in its Equity Interests for nominal amounts which are required used to be repurchased in connection with purchase, retire, redeem or otherwise acquire the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Holdings (or of any such direct or indirect parent of Holdings) or of the Parent Borrower Company (following a Qualified Public Offering of the Company) (including related stock appreciation rights or similar securities) held by any future, then present or former directordirectors, officerconsultants, member officers or employees of managementHoldings (or of any such direct or indirect parent), employee or consultant of the Parent Borrower Company or any of its the Subsidiaries (or by any stock option plan or other benefit plan upon such Person’s death, disability, retirement or termination of employment or under the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner terms of any such plan or any other agreement under which such shares of the foregoing)stock or related rights were issued; provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made such purchases, redemptions or other acquisitions under this clause (va)(iii) shall not exceed in any fiscal year does not exceed $5,000,000 (plus the amount of net proceeds (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit received by Holdings during such calendar year from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase sales of Equity Interests of Holdings to directors, consultants, officers or employees of Holdings, the Parent Borrower that occurs upon the cashless exercise Company or any Subsidiary in connection with permitted employee compensation and incentive arrangements and (y) of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting any key-man life insurance policies received during such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interestscalendar year);
(viiiv) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions necessary to implement such transactions;
(viii) repurchase non-cash repurchases of Equity Interests deemed to occur upon the non-cash exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(v) the Company and its Subsidiaries may make Restricted Payments to Holdings (x) in an amount (together with loans or advances made pursuant to Section 6.04(n)) not to exceed $1,500,000 in any fiscal year, to the extent necessary to pay taxes(or allow any direct or indirect parent of Holdings to pay) its general corporate and overhead expenses incurred by Holdings (or any direct or indirect parent thereof) in the ordinary course of business, plus the amount of any reasonable and customary indemnification claims made by any director or officer of Holdings (or any direct or indirect parent thereof), (y) to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence and (z) in an amount necessary to pay the Tax liabilities of Holdings (or any such direct or indirect parent) attributable to (or arising as a result of) the operations of the Company and its Subsidiaries; provided, however, that in the case of clause (z), the amount of such dividends shall not exceed the amount that the Company and its Subsidiaries would be required to pay in respect of Federal, state and local taxes and any other taxes were the Company and the Subsidiaries to pay such taxes as stand-alone taxpayers;
(vi) [Reserved];
(vii) to the extent constituting Restricted Payments, Holdings, the Company and its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 6.03 or 6.09 (other than Section 6.09(e));
(viii) the Company and its Subsidiaries may make Restricted Payments to Holdings to finance any investment permitted to be made pursuant to Section 6.04 (other than Section 6.04(m)) provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such investment and (B) Holdings shall, immediately following the closing thereof, cause (i) all property acquired (whether assets or Equity Interests) to be contributed to the Company or its Subsidiaries or (ii) the merger (to the extent permitted in Section 6.03) of the Person formed or acquired into the Company or its Subsidiaries in order to consummate such Permitted Acquisition;
(ix) the Parent Borrower and its Restricted Subsidiaries Holdings may make Restricted Payments in an aggregate amount that, together with the proceeds of the issuance of Indebtedness of Holdings permitted by Section 6.01 (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that than (x) as of the date of any such Restricted Payment Section 6.01(c) and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist any such Indebtedness Guaranteed by or would result therefrom on secured directly or indirectly by the date assets of declaration the Company or any of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ixits Subsidiaries), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134;
(x) in addition to the Parent Borrower foregoing Restricted Payments, Holdings and the Company may make additional Restricted PaymentsPayments provided that each of the Payment Conditions is satisfied;
(xi) the distribution, as a dividend or otherwise (and the declaration of such dividend), of shares of capital stock of, or Indebtedness owed to the Company or a Subsidiary by, any Unrestricted Subsidiary so designated on the date hereof; and
(xii) other Restricted Payments by Holdings and the Company which, together with investments, loans and advances made pursuant to Section 6.04(w) and Restricted Debt Payments made pursuant to Section 6.08(b)(x), do not exceed $30,000,000 in the aggregate; provided that (A) (x) as of that, at the date of any time such Restricted Payment Payments are made and after giving effect thereto, no Liquidity Event or Event of Default shall exist exists or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment has occurred and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal yearcontinuing.
(b) Such Borrower will notNo Loan Party will, nor will it permit any of its Restricted 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 purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”), or any other 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 Indebtedness (collectively, “Restricted IndebtednessDebt Payments”), except:
(i) replacementspayment of Indebtedness under the Loan Documents, refinancingsother than prepayments of principal and interest on any Incremental Term Loans (except to the extent otherwise permitted by Section 6.08(b)(xi) below) or the last sentence of Section 2.10(a));
(ii) payment of Indebtedness under the Existing Credit Agreement in connection with the fulfillment of the conditions to the Effective Date hereunder;
(iii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, amendments, supplements, modifications, extensions, renewals, restatements or refunding other than payments in respect of Restricted the Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iv) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iiv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness so long as such sale is permitted by Section 6.05 (Aother than sales, transfers and dispositions under Section 6.05(j) the proceeds of which are to be applied to payments of secured Indebtedness, which sales, transfers and dispositions are not otherwise permitted under Section 6.05));
(vi) payment of Indebtedness in exchange for or with proceeds of any substantially contemporaneous issuance of Qualified Equity Interests or substantially contemporaneous capital contribution in respect of Qualified Equity Interests of Holdings;
(vii) payment of Indebtedness under the Senior Secured Term Loan Facility or any Term Loan Pari Passu Obligations (or any extensions, renewals or replacements thereof permitted under Section 6.01(g) and Section 6.02(x)), with the net cash proceeds of any sale, transfer or other distributions on account disposition of any Term Loan First Lien Collateral (as defined in the Intercreditor Agreement), or, in the case of any such extensions, renewals or replacements or any Term Loan Pari Passu Obligations, any property or assets in respect of which the security interest of the purchaselenders thereunder has priority over the security interest of the Agent, redemptionfor the benefit of the Secured Parties, retirementin such property or assets, acquisitionpursuant to the Intercreditor Agreement or another intercreditor agreement in form and substance reasonably satisfactory to the Agent that is no less favorable to the Secured Parties than the Intercreditor Agreement;
(viii) mandatory prepayments of Indebtedness under Section 2.09 of the Senior Secured Term Facility Credit Agreement (or any successor section thereof, cancellation or termination under any comparable provision in any instrument governing any Term Loan Pari Passu Obligations or any extension, renewal or replacement thereof or of Restricted Indebtednessthe Senior Secured Term Loan Facility, in each case permitted under Section 6.01(g), pursuant to which mandatory prepayments of Indebtedness thereunder determined by reference to Excess Cash Flow (as defined in exchange forthe Senior Secured Term Facility Credit Agreement or as defined substantially similarly in all material respects in any such other instrument) are required to be made), in amounts required under, and in accordance with, the Senior Secured Term Facility Credit Agreement or out such other instrument (in the case of any such other instrument, in amounts no greater in any material respect than those required under the Senior Secured Term Facility Credit Agreement);
(ix) other Restricted Debt Payments, provided that each of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower Payment Conditions is satisfied (it being understood and agreed that, if an irrevocable notice or contractual obligation is given in, made or arises in respect of any Restricted Debt Payment, the foregoing conditions only need to be satisfied at the time of the giving of such amounts will irrevocable notice or entering into (or effectiveness of) any such contractual obligation);
(x) other Restricted Debt Payments which, together with any investments, loans or advances made pursuant to Section 6.04(w) and Restricted Payments made pursuant to Section 6.08(a)(xii), do not increase exceed $30,000,000 in the Available Amount)aggregate; provided that, at the time such Restricted Debt Payments are made and after giving effect thereto, no Liquidity Event or Event of Default exists or has occurred and is continuing;
(xi) Restricted Debt Payments in respect of Incremental Term Loans, provided that, at the time such Restricted Debt Payments are made and after giving effect thereto, (A) the Term Loan Prepayment Conditions are satisfied, or (B) the conversion of any such Restricted Indebtedness to Equity Interests Debt Payments are permitted under clause (other than Disqualified Equity Interests);
(iiiix) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom or (2) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect thereto, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
(iv) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice6.08(b); and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) The Parent Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries subsidiaries to, declare or make make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
or incur any obligation (contingent or otherwise) to do so, except (i) such Person the Subsidiaries may declare and make Restricted Payments pay dividends ratably with respect to their Equity Interests, (ii) Holdings may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Qualified Equity Interests;
(ii) Restricted Subsidiaries may declare and pay dividends with respect to their Equity Interests (provided that if such Restricted Subsidiary is not wholly-owned by the Parent Borrower, such dividends must be made to the holders of its Equity Interests ratably according to their interests) and, solely with respect to Subsidiaries organized in Germany, may make other payments in accordance with domination and profit and loss pooling agreements (Beherrschungs – und Ergebnisabführungsverträge) within the meaning of Section 291 of the German Stock Corporation Act (AktG) as well as distribute profits and compensate losses in connection therewith;
(iii) to the extent constituting Restricted Payments, the Parent Borrower Holdings may make (and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.09;
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; CREDIT AGREEMENT, Page 133
(v) the Parent Borrower may pay for the repurchase, retirement declare and make dividends or other acquisition or retirement for value of Equity Interests of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse, former spouse, domestic partner or former domestic partner of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) distributions to Holdings in any fiscal year does not exceed (x) $10,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Equity Interests;
(vii) such Parent Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement or in connection with the Vion Acquisition as contemplated by the Vion Acquisition Agreement and in connection with the consummation of the transactions described in the PWC Steps Memo and any actions amounts necessary to implement such transactions;
(viiipermit Holdings to make) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant not to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that (x) as of the date of $3,000,000 in any such Restricted Payment and after giving effect thereto no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom on the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration; provided further that solely for purposes of this Section 6.08(a)(ix), in no event shall more than $300,000,000 in Restricted Payments be made with the Available Amount pursuant to this Section 6.08(a)(ix); CREDIT AGREEMENT, Page 134
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) (x) as of the date of any such Restricted Payment and after giving effect thereto, no Default shall exist or would result therefrom or (y) no Default shall exist or would result therefrom as of the date of declaration of such Restricted Payment and such Restricted Payment is made within 60 days of such declaration and (B) if the Total Leverage Ratio on a Pro Forma Basis is greater than 4.50 to 1.00 or the Secured Leverage Ratio on a Pro Forma Basis is greater than 3.00 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year.
(b) Such Borrower will notto cancel, nor will it permit any redeem, acquire or repurchase shares of its Restricted Subsidiaries common or preferred stock held by, or stock options granted to, make any payment directors and employees of the Loan Parties in respect the event of death, disability, termination of employment or retirement of any purchase, redemption, retirement, acquisition, cancellation such director or termination employee (it being understood that such Restricted Payment may be in the form of any Subordinated Indebtedness or subordinated to the NewExisting Senior Unsecured Notes (including any refinancing or replacement thereof) having an individual outstanding principal amount Obligations in excess of $25,000,000 (such Indebtedness, collectively, “Restricted Indebtedness”a manner reasonably acceptable to the Administrative Agent), (iv) Holdings may exchange its Qualified Equity Interests for, and in repayment or prepayment of, any subordinated Indebtedness permitted by Section 6.01(q) or refinance such subordinated Indebtedness with other 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 Restricted Indebtedness, except:
(i) replacements, refinancings, amendments, supplements, modifications, extensions, renewals, restatements or refunding of Restricted subordinated Indebtedness to the extent permitted by Section 6.01;
6.01(q), (iiv) Holdings may and the Parent Borrower may, or may make Restricted Payments to Holdings so that Holdings may, make Restricted Payments, not exceeding $1,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans approved by the Parent Borrower’s board of directors for management or employees of Holdings, the Parent Borrower and the Subsidiaries, (vi) the Parent Borrower may make Restricted Payments to Holdings at such times and in such amounts (A) not exceeding $500,000 during any fiscal year (or $4,000,000 in any fiscal year of the Parent Borrower following the completion of an IPO where Holdings is the Public Company), as shall be necessary to permit Holdings to discharge its general corporate and overhead (including franchise taxes and directors fees) expenses incurred in the ordinary course and other permitted liabilities and (B) as shall be necessary to pay the Tax liabilities of Holdings directly attributable to (or arising as a result of) the operations of the Parent Borrower and the Subsidiaries; provided, however, that (1) the amount of Restricted Payments pursuant to clause (B) of this clause (vi) shall not exceed the amount that the Parent Borrower and the Subsidiaries would be required to pay in respect of federal, state, provincial and local taxes were the Parent Borrower and the Subsidiaries to pay such taxes as stand-alone taxpayers and (2) all Restricted Payments made to Holdings pursuant to this clause (vi) are used by Holdings for the purposes specified herein within five Business Days after Holdings’ receipt thereof, (vii) the Parent Borrower may make Restricted Payments to the extent necessary to permit Holdings to make, and Holdings may make, payments of or other distributions on account of the purchase(A) management, redemptionconsulting and advisory fees, retirement(B) transaction fees and (C) reimbursement of reasonable out-of-pocket costs and expenses incurred in connection with management, acquisition, cancellation or termination of Restricted Indebtednessconsulting and advisory services, in each case in exchange forto the Sponsor and the Sponsor Affiliates to the extent permitted by Section 6.09(f), or out of the net proceeds ofprovided that, the substantially concurrent sale of Equity Interests solely with respect to Restricted Payments made pursuant to subclause (other than Disqualified Equity InterestsA) of the Parent Borrower this clause (it being understood such amounts will not increase the Available Amountvii), or (B) the conversion no Event of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests);
(iii) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount not to exceed the greater of $25,000,000 and 1% of Consolidated Total Assets; provided that (x) (1) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom therefrom, (viii) concurrently with any issuance of Qualified Equity Interests, Holdings may redeem, purchase or retire any Equity Interests of Holdings using the proceeds of, or convert or exchange any Equity Interests of Holdings for, such Qualified Equity Interests, (2ix) no Default shall exist or would result therefrom on to the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice and (y) after giving effect theretoextent permitted by the Senior Secured Notes Indenture, the Parent Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants;
Loan Parties may make Restricted Payments from (iv) payments or other distributions on account and within one year of the purchasereceipt of) AAG Proceeds, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness if, on a Pro Forma Basis, the Secured Leverage Ratio is less than 4.00 to 1.00; CREDIT AGREEMENT, Page 135
(v) payments or other distributions on account of the purchase, redemption, retirement, acquisition, cancellation or termination of Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that (x) as the Loan Parties may make Restricted Payments comprised of no more than 25% of the date of such payment or distribution and after giving effect thereto no Default shall exist or result therefrom or (y) no Default shall exist or would result therefrom on the date such Person provides notice of such payment or distribution and such payment or distribution shall be made within 90 days of such notice; and
(vi) payment-in-kind interest with respect to Restricted Indebtedness permitted by this Agreement;
(vii) payments or distributions on account of intercompany Subordinated Indebtedness not prohibited by the terms of this Agreement; and
(viii) payments as part of an “applicable high yield discount obligation” catch-up payment with respect to Restricted Indebtedness permitted by this Agreement. Notwithstanding the foregoingPurchase Price Adjustment Proceeds, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement. For the avoidance of doubt, the Parent Borrower and its Restricted Subsidiaries may make regularly scheduled payments of principal and payments of interest, fees, expenses and indemnification or similar obligations in respect of Restricted Indebtedness when due, and in the case of Subordinated Indebtedness, to the extent not prohibited by the subordination provisions thereof (if applicable).any,
Appears in 1 contract
