Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that (i) Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon; (ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07; (iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition; (iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof; (v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower; (vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year); (vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and (viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year. (b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except (i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind of the Loan Parties and their Subsidiaries; (ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date; (iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment; (iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date; (v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon; (vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01; (vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and (viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.
Appears in 2 contracts
Samples: Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 2,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, amount not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause clauses (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iiia)(ii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind of the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes Indebtedness and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Lead Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, Date and (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;; and
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.
Appears in 2 contracts
Samples: Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willHoldings will not, nor and will it not permit any Restricted Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except thator incur any obligation (contingent or otherwise) to do so, except:
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash 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) Restricted Subsidiaries may declare and pay dividends ratably with respect to their capital stock, membership or partnership interests or other similar Equity Interests,
(iii) Holdings may, or may declare and pay dividends or make other distributions to any Parent, the proceeds of property to which are used by a Loan PartyParent to, purchase or redeem Equity Interests of Holdings or a Parent acquired by current or former officers, employees, consultants or directors (or their estates or beneficiaries under their estates) of such Parent, Holdings, the Borrower or any Restricted Subsidiary upon such Person’s death, disability, retirement or termination of employment; provided that any the aggregate amount of such Restricted Payments made to Holdings purchases or redemptions under this clause (iiii) shall not exceed $15,000,000 in any fiscal year (and, to the extent that the aggregate amount of purchases or redemptions made in any fiscal year pursuant to this clause (iii) is less than $15,000,000, the amount of such difference may be carried forward and used for such purpose in the following fiscal year subject to an aggregate cap of $30,000,000 that may be expended in any fiscal year),
(iv) Holdings may make Restricted Payments to a Parent to be used only (A)(x) by such Parent solely 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 similar other compensation of employees) and other expenses in its capacity as the parent of Holdings incurred by Holdings or a Parent in the ordinary course of businessits 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 Holdings 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 a Parent is the common parent (a “Tax Group”), Holdings may make Restricted Payments to such Parent in an amount necessary to enable such Parent 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 Holdings and/or its applicable Subsidiaries; provided that the amount of any indemnification claims such Restricted Payments pursuant to this clause (v) shall not exceed the amount of such Taxes that Holdings and/or its applicable Subsidiaries would have paid had Holdings 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, or will be within 60 days of such payment, made by such Unrestricted Subsidiary to Holdings or any director or officer of Holdings, its Restricted Subsidiaries for such purpose,
(yvi) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence cashless repurchases of Equity Interests of Holdings and 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,
(zvii) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Restricted Subsidiaries may 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 (including Unrestricted Subsidiariesprovided 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) [reserved],
(ix) Holdings may, or may make Restricted Payments to any Parent to enable such Parent to, pay dividends on its common stock in an aggregate amount not to exceed $60,000,000 in any fiscal year,
(x) Holdings and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount not exceeding the Available Amount immediately prior to the time of the making of such Restricted Payment; provided that (B) so long as (1x) no Event of Default has occurred and is continuing or would arise result therefrom and (2y) immediately after giving effect to such Restricted Payment on a Pro Forma Basis, the Borrower is Total Net Leverage Ratio does not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments exceed 5.75:1.00,
(xi) Holdings may make Restricted Payments to Holdingsany Parent to pay any non-recurring fees, to make payments cash charges and cost expenses incurred in connection with the repurchase issuance of Capital Stock Equity Interests or Indebtedness, in each case only to the extent that such transaction is not consummated,
(xii) Holdings and its Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount not to exceed the greater of Holdings $50,000,000 and 1.5% of Total Assets (together with the aggregate amount of any prepayments, redemptions, defeasances, repurchases or any Subsidiary other retirement of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewithSpecified Indebtedness under Section 6.08(b)(iv), ); provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise result therefrom,
(xiii) Holdings 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 (2y) immediately after giving effect to such Restricted Payment on a Pro Forma Basis, the Borrower is Total Net Leverage Ratio does not prohibited under exceed 4.50:1.00,
(xiv) Holdings and its Restricted Subsidiaries may make payments for the Senior Initial Loan Facility repurchase of Equity Interests deemed to occur upon the exercise of options, rights or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness warrants to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests Equity Interests represent a portion of the exercise price of such option those options, rights or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;and
(vixv) Holdings and its Restricted Subsidiaries may make cash payments in lieu of fractional shares issuable as dividends on common stock, preferred stock or upon the conversion of any convertible debt securities of Holdings and its Restricted Payments constituting other repurchases Subsidiaries. and provided, further, that cancellation of Capital Stock of Indebtedness owing to Holdings or any Restricted Subsidiary from members of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year management of Holdings, (B) any of Holdings’ direct or indirect parent companies or any of Holdings’ Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders Subsidiaries in connection with the a repurchase of shares Equity Interests of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall ’ direct or indirect parent companies will not be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from constitute a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearPayment.
(b) No Loan Party willHoldings will not, nor and will it not permit any Restricted Subsidiary of it to, make make, directly or agree to pay or make indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified Indebtednesson, 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 such 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 Holdings) (“Specified Indebtedness”), except:
(i) payment of regularly scheduled interest and principal payments as and when due in Capital Stock (respect of any Indebtedness, other than, in the case of Subordinated Indebtedness, as long as no Change in Control would result therefrom) and payments of interest in-kind of prohibited by the Loan Parties and their Subsidiaries;subordination provisions thereof,
(ii) (A) scheduled payments the conversion or exchange of principal and interest as and when due and (B) as long as no any Specified Default then exists Indebtedness into, or would arise therefromredemption, prepayments in whole repurchase, prepayment, defeasance or in part other retirement of any such Indebtedness with the Net Proceeds of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in issuance by Holdings or a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
Parent of Equity Interests (iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party in respect thereof) of Holdings or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on a Parent after the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) not Otherwise Applied, plus any repaymentfees and expenses in connection with such conversion, purchaseexchange, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchaseprepayment, defeasance or other acquisition retirement,
(iii) the prepayment, redemption, defeasance, repurchase or other retirement of Specified Indebtedness for an aggregate purchase price not to exceed the Available Amount; 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, redemption, defeasance, repurchase or other retirement of Specified Indebtedness on a Pro Forma Basis, the Total Net Leverage Ratio does not exceed 5.75:1.00,
(iv) Holdings and its Restricted Subsidiaries may make additional prepayments, redemptions, defeasances, repurchases or other retirement of Specified Indebtedness in an aggregate amount not to exceed $50,000,000 (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 is continuing or would result therefrom,
(v) other prepayments, redemptions, defeasances, repurchases or other retirement of Specified 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, redemption, defeasance, repurchase or other retirement of Specified Indebtedness constituting Holdco Initial Loan Facility Indebtedness (includingon a Pro Forma Basis, without limitationthe Total Net Leverage Ratio does not exceed 4.50:1.00, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viiivi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement refinancings of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of to the proceeds of extent the substantially concurrent issuance or sale of, Indebtedness of the Borrower being incurred in compliance connection with such refinancing is permitted by Section 6.01.
Appears in 2 contracts
Samples: Credit Agreement (Select Medical Corp), Credit Agreement (Select Medical Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Issuer will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
that (i) Any Loan Party or any Subsidiary of a Loan Party the Issuer may declare and pay cash dividends or make other distributions with respect to its capital stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits capital stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings their capital stock and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is Issuer may make Restricted Payments, not prohibited under exceeding $200,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for directors, management or employees of the Senior Initial Loan Facility Issuer and the Subsidiaries, including the redemption or purchase of capital stock of the ABL Facility from making such payments to HoldingsIssuer held by former directors, to make payments in connection with management or employees of the repurchase of Capital Stock of Holdings Issuer or any Subsidiary following termination of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearemployment.
(b) No Loan Party willThe Issuer will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesTransaction Documents;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of any Indebtedness permitted under the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing DateTransaction Documents;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent such Indebtedness is permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;Indebtedness; and
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payments in respect of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Permitted Receivables Facility.
Appears in 2 contracts
Samples: Indenture (Memc Electronic Materials Inc), Indenture (Memc Electronic Materials Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willEach of the Credit Parties will not, nor and will it not permit any Subsidiary of it their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayment or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party Borrower may declare and pay cash dividends or make other distributions of property with respect to a Loan Party; provided that any its Capital Stock payable solely in additional Capital Stock in such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of HoldingsBorrower, (yii) a Borrower may declare and pay dividends as permitted by Applicable Law to pay franchise taxes and other feesthe Parent if, taxes and expenses required to maintain the corporate existence of Holdings but only if, no Default exists or results therefrom, and (ziii) to pay taxes that are due and payable by Holdings as the parent Subsidiaries of a consolidated group that includes Holdings Borrower may declare and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the pay dividends to such Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearGuarantor.
(b) No Loan Party willEach of the Credit Parties will not, nor and will it not permit any Subsidiary of it their respective Subsidiaries to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) scheduled payments refinancings of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of Indebtedness to the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Dateextent permitted by Section 11.1;
(iii) prepayment in whole or in part payment of secured Indebtedness that becomes due as a result of the Senior Initial Loan Facilityvoluntary sale or transfer of the property or assets securing such Indebtedness, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility provided that such sale or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received transfer is otherwise permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentthis Agreement;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date payment or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indentureprepayment of Capital Lease obligations, so long as such Senior Initial Loan Agreement, Senior Note Indenture no Default is existing or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;would result therefrom; and
(v) partial redemption or prepayment by Holdings payment when due of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01obligations under Hedge Agreements.
Appears in 2 contracts
Samples: Credit Agreement (Alon Brands, Inc.), Credit Agreement (Alon USA Energy, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of it the Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions with respect to its capital stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other feestheir capital stock, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries 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 purpose of paying amounts owing under Borrower and its Subsidiaries and (iv) the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries Borrower may make Restricted Payments on not exceeding $50,000,000 pursuant to and in accordance with plans approved by the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting Board of Permitted Dispositions Directors of the type described, and subject Borrower to repurchase outstanding Equity Interests of the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings Borrower or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearSubsidiary.
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of it the Subsidiaries 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 cancelation or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of the Loan Parties and their SubsidiariesIndebtedness created under this Agreement;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility any Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective DateIndebtedness;
(v) partial redemption payment of Indebtedness of any Person acquired by the Borrower or prepayment by Holdings any Subsidiary that exists on the date of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;such acquisition; provided that such Person becomes a Subsidiary as a result of such acquisition; and
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made mandatory payments by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01a Receivables Subsidiary on Third Party Securities.
Appears in 2 contracts
Samples: Credit Agreement (Sungard Data Systems Inc), 364 Day Credit Agreement (Sungard Data Systems Inc)
Restricted Payments; Certain Payments of Indebtedness. (ai) No Loan Party willThe Company will not, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(ia) Any Loan Party or any Subsidiary of a Loan Party the Company may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause 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, (ib) thereof as it relates Subsidiaries may declare and pay dividends ratably with respect to non-payment of interest)their Equity Interests, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2c) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments Company may make Restricted Payments, of up to Holdings, $5,000,000 per fiscal year pursuant to pay interest as and when due in respect accordance with equity incentive plans of the Holdco Initial Loan Facility Indebtedness; Company and its Subsidiaries, or (Dd) the Company may pay cash dividends on its Preferred Stock with proceeds of an initial public offering of its Common Stock upon the conversion of such Preferred Stock to partially redeem or prepay Holdco Initial Loan Facility Indebtedness Common Stock, pursuant to Section 4.2.1 of the extent necessary to make an AHYDO “catch-up” payment thereon;Company’s certificate of incorporation.
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party willCompany will not, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(ia) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesTransaction Documents;
(iib) payment of the Senior Debt;
(Ac) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iiid) prepayment in whole or in part refinancings of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made permitted by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03paragraph 6B; and
(viiie) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payment of any secured Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out that becomes due as a result of the proceeds voluntary sale or transfer of the substantially concurrent issuance property or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01assets securing such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Bluestem Brands, Inc.), Credit Agreement (Bluestem Brands, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay dividends with respect to its Equity Interests payable in cash dividends or make other distributions by way of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course shares of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries may declare and pay dividends with respect to pay franchise taxes and other feestheir Equity Interests, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (viiv) the Borrower may make Restricted Payments in respect of the Convertible Notes permitted by Section 6.08(b), and (v) the Borrower may purchase for cancellation or retire or otherwise acquire for value in any Fiscal Year exceeds manner any of its own Equity Interests up to the maximum aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause $75,000,000 during any Fiscal Year shall fiscal year of the Borrower, provided that no Default has occurred or could reasonably be deemed made, first, in respect expected to occur either before or after the making of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearproposed Restricted Payment.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it its Subsidiaries 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part unless a Default has occurred and is continuing, payment (a) on the surrender of the Senior Initial Loan FacilityConvertible Notes as a result of the exercise of a right of conversion of the Convertible Notes by one or more holders thereof, Additional (b) in the event of a fundamental change (as defined in the Information Memorandum), if a holder of Convertible Notes accepts a purchase offer (as defined in the Information Memorandum) of the Borrower Unsecured Senior Noteswith respect to such fundamental change, or (c) provided that the Holdco Initial Loan Facility Total Debt to EBITDA Ratio (with EBITDA for such purposes being measured for the most recently completed four fiscal quarter period of the Borrower) is less than or equal to 2.00:1.00, determined both before and after the Term Loan Financing Facility with making of such proposed redemption, to redeem the proceeds Convertible Notes if the Borrower exercises a right of redemption as a result of becoming obligated to pay “additional amounts” (as defined in the Information Memorandum) under the circumstances described in the Information Memorandum which include for greater certainty the obligation of the Borrower to pay to the holders of any equity securities issued Converted Note additional amounts (which are more than a de minimis amount) as a result of any change from the date hereof in the laws or capital contributions received any regulations of Canada or any Canadian political subdivision or taxing authority, or any change from the date hereof in an interpretation or application of such laws or regulations by any Loan Party legislative body, court, governmental agency, taxing authority or regulatory authority (including the enactment of any Subsidiary for legislation and the purpose publication of making such payment any judicial decision or prepaymentregulatory or administrative determination) in respect of Canadian withholding tax;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable refinancings of Indebtedness to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments extent permitted by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective DateSection 6.01;
(v) partial redemption or prepayment by Holdings payment of secured Indebtedness that becomes due as a result of the Holdco Initial Loan Facility Indebtedness to voluntary sale or transfer of, or casualty with respect to, the extent necessary to make an AHYDO “catch-up” payment thereonproperty or assets securing such Indebtedness;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out payment of the proceeds of the substantially concurrent issuance Biovail SA Indebtedness to Biovail SA on or sale ofbefore July 17, Indebtedness of the Borrower incurred in compliance with Section 6.012009;
(vii) payment of Indebtedness owed to the Borrower or any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement Subsidiary of the Company in accordance with the terms of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03subordination provisions thereof; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out payment of the proceeds of the substantially concurrent issuance or sale of, Indebtedness Convertible Notes with Equity Interests of the Borrower incurred as permitted by and in compliance accordance with Section 6.01the Convertible Notes Indenture or conversion of the Convertible Notes to Equity Interests of the Borrower as permitted by and in accordance with the Convertible Notes Indenture.
Appears in 2 contracts
Samples: Credit Agreement (Biovail Corp International), Credit Agreement (Biovail Corp International)
Restricted Payments; Certain Payments of Indebtedness. (a) No The Loan Party willParties will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
as long as no Default or Event of Default exists or would arise therefrom (i) Any the Loan Party or any Subsidiary of a Loan Party Parties may declare and pay dividends with respect to their capital stock payable solely in additional shares of their common stock, (ii) the Subsidiaries of the Lead Borrower may declare and pay dividends ratably with respect to their capital stock, and (iii) only if the Payment Conditions are then satisfied, the Lead Borrower may (A) pay cash dividends or make other distributions of property on its capital stock in an amount not to a Loan Party; provided that exceed $5,000,000.00 in any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of businessfiscal year, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); and/or (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearits capital stock.
(b) No The Loan Party willParties will not, nor and will it not permit any Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payment of regularly scheduled interest and principal payments as and when due in Capital Stock (as long as no Change in Control would result therefrom) and payments respect of interest in-kind of the Loan Parties and their Subsidiariesany permitted Indebtedness;
(ii) refinancings of Indebtedness described in clause (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromi), prepayments in whole or in part of above, to the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;extent permitted by Section 6.01; and
(iii) prepayment in whole or in part redemptions of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required Indebtedness due under the Senior Initial Loan Agreement as in effect on Indenture, if the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments Payment Conditions are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01then satisfied.
Appears in 2 contracts
Samples: Credit Agreement (Jo-Ann Stores Inc), Credit Agreement (Jo-Ann Stores Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Company may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only per share with respect to clause (i) thereof as it relates to non-payment its common Equity Interests payable solely in additional shares of interest)its common Equity Interests, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties the Company may declare and their Subsidiaries may make Restricted Payments pay dividends with respect to its Equity Interests in an aggregate amount per share in any fiscal year of the Company not to exceed 100% of the “distributable earnings” per share or words of similar import (in each case, as such term is reported in the Company’s financial statements from time to time) for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
such fiscal year and (iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date declare and pay dividends ratably with respect to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearEquity Interests.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified subordinated 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 such Specified subordinated Indebtedness, except:
(i) payment of regularly scheduled interest and principal payments as and when due in Capital Stock (as long as no Change in Control would result therefrom) and respect of any such Indebtedness permitted under Section 6.01, other than payments of interest in-kind of prohibited by the Loan Parties and their Subsidiariessubordination provisions thereof; and;
(ii) (A) scheduled payments refinancings of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made permitted by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.
Appears in 2 contracts
Samples: Credit Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.), Credit Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Issuer will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
that (i) Any Loan Party or any Subsidiary of a Loan Party the Issuer may declare and pay cash dividends or make other distributions with respect to its capital stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits capital stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings their capital stock and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is Issuer may make Restricted Payments, not prohibited under exceeding $200,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for directors, management or employees of the Senior Initial Loan Facility Issuer and the Subsidiaries, including the redemption or purchase of capital stock of the ABL Facility from making such payments to HoldingsIssuer held by former directors, to make payments in connection with management or employees of the repurchase of Capital Stock of Holdings Issuer or any Subsidiary following termination of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearemployment.
(b) No Loan Party willThe Issuer will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesTransaction Documents;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of any Indebtedness permitted under the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing DateTransaction Documents;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;Indebtedness; and
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payments in respect of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Permitted Receivables Facility.
Appears in 2 contracts
Samples: Indenture (Memc Electronic Materials Inc), Indenture (Memc Electronic Materials Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
that (i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions with respect to its capital stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits capital stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings their capital stock and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is may make Restricted Payments, not prohibited under exceeding $200,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for directors, management or employees of the Senior Initial Loan Facility Borrower and the Subsidiaries, including the redemption or purchase of capital stock of the ABL Facility from making such payments to HoldingsBorrower held by former directors, to make payments in connection with management or employees of the repurchase of Capital Stock of Holdings Borrower or any Subsidiary following termination of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearemployment.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments or the Reimbursement Documentation;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists in respect of any Indebtedness permitted under the Loan Documents or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing DateReimbursement Documentation;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent such Indebtedness is permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;Indebtedness; and
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payments in respect of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Permitted Receivables Facility.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc), Revolving Credit Agreement (Memc Electronic Materials Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except thatexcept:
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay dividends with respect to its capital stock payable solely in additional shares of its common stock;
(ii) the Borrower may declare and pay dividends in cash dividends or make other distributions of property with respect to a Loan Party; provided that any its capital stock to the Parent at such Restricted Payments made to Holdings under this clause (i) times and in such amounts as shall be used only (A)(x) necessary to permit the Parent to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (yA) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries scheduled interest (including Unrestricted Subsidiaries); any tax gross-up with respect thereto) and principal payments as and when due in respect of the Parent Senior Notes and (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdingscontinuing, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it scheduled interest (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only any tax gross-up with respect to clause (ithereto) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of any notes issued to refinance the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07Parent Senior Notes;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date declare and pay dividends ratably with respect to consummate the VH Acquisition;their capital stock; and
(iv) The Loan Parties and their Subsidiaries the Borrower may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplicationPayments, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ US$5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; providedduring any fiscal year, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) and in accordance with stock option plans or other benefit plans for any Fiscal Year exceeds management or employees of the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above Borrower and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearits Subsidiaries.
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of it to, make or agree to pay make, directly or make indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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, defeasance, acquisition, cancellation cancelation or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments respect of interest in-kind of Indebtedness created under the Loan Parties and their Subsidiaries;Documents; and
(ii) (A) scheduled required interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds respect of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with or a Subsidiary permitted under Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.01(a).
Appears in 2 contracts
Samples: Credit Agreement (Grupo Iusacell Celular Sa De Cv), Credit Agreement (Grupo Iusacell Sa De Cv)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Credit Agreement Party will, nor will it permit any Subsidiary of its Subsidiaries to (nor will it apply to the Bankruptcy Court or the Canadian Court for authority to), declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party each of Holdings and the U.S. 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 of the U.S. Borrower may declare and pay dividends ratably with respect to their capital stock, membership or partnership interests or other similar Equity Interests, (iii) the U.S. Borrower may make Restricted Payments to Holdings to permit Holdings to make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings and its Subsidiaries that have been approved by the board of directors of Holdings in an amount during any Fiscal Year equal to the sum of (A) U.S.$1,000,000 and (B) amounts received by Holdings as a result of the sale of Equity Interests in Holdings to employees, officer, directors or consultants of Holdings, the U.S. Borrower or any Subsidiary of a Loan Party the U.S. Borrower since the beginning of the relevant Fiscal Year, which amounts, if not used in any Fiscal Year, may declare be carried forward to any subsequent Fiscal Year, (iv) the U.S. Borrower may pay dividends to Holdings, at such times and pay cash dividends or make other distributions of property to a Loan Party; provided that in such amounts (A) not exceeding U.S.$2,500,000 during any such Restricted Payments made to Holdings under this clause (i) Fiscal Year, as shall be used only (A)(x) necessary to pay general permit Holdings to discharge its corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay including franchise taxes and directors fees) and other fees, taxes permitted liabilities and expenses required to maintain the corporate existence of Holdings make payments permitted by Section 10.09 and (zB) as shall be necessary to pay any taxes that are due and payable by Holdings as the parent part of a consolidated consolidated, combined, unitary or similar group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the U.S. Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreementits Subsidiaries, to the extent permitted that such taxes relate to the operations of the U.S. Borrower and its Subsidiaries and so long as any refunds received by Holdings attributable to the U.S. Borrower or any of its Subsidiaries shall be promptly returned by Holdings to the U.S. Borrower and (v) without duplication as to amounts distributable with respect to taxes under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
clause (iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations containedabove, in the definition thereof;
(v) The Loan Parties event that Holdings and their Subsidiaries the U.S. Borrower become pass-through or disregarded entities for U.S. federal income tax purposes, the U.S. Borrower may make Restricted Payments constituting repurchases Tax Distributions to Holdings to the extent that the aggregate amount of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments Tax Distributions made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall taxable year does not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during U.S. federal, state and local income taxes that would have otherwise been payable by the U.S. Borrower for such Fiscal Yeartaxable year had it remained a corporation for U.S. federal income tax purposes for such taxable year, such excess capacity in each case as may be carried over to approved by the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from Bankruptcy Court and the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearCanadian Court.
(b) No Loan Credit Agreement Party will, nor will it permit any Subsidiary of its Subsidiaries to (nor will it apply to the Bankruptcy Court or the Canadian Court for authority 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified Scheduled Existing 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 such Specified Indebtedness, except
(i) payments , in Capital Stock (each case as long as no Change in Control would result therefrom) and payments of interest in-kind of may be approved by the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes Bankruptcy Court and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Canadian Court.
Appears in 2 contracts
Samples: Debtor in Possession Credit Agreement (Cooper-Standard Holdings Inc.), Debt Agreement (Cooper-Standard Holdings Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Parent nor Borrowers will, nor will it they permit any Restricted Subsidiary of it a Borrower to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except thatexcept:
(i) Any Loan Party each Borrower and each Restricted Subsidiary of a Borrower may make Restricted Payments to a Borrower or any Subsidiary of a Borrower that is a Loan Party (and, in the case of any such Restricted Subsidiary that is not a wholly-owned Restricted Subsidiary, to each other owner of Equity Interests of such Restricted Subsidiary ratably based on their relative ownership interests of the relevant class of Equity Interests);
(ii) to the extent constituting a Restricted Payment, any Borrower and any Restricted Subsidiary of a Borrower may declare consummate any transaction permitted by Section 7.03 and Section 7.04 (other than Section 7.04(j), (m), (n), (q) and (t));
(iii) to the extent constituting a Restricted Payment, the conversion of Convertible Notes into Equity Interests pursuant to the terms thereof;
(iv) payments to Parent to enable Parent to make repurchases, redemptions or reductions in number of shares issued (including, by utilization of the “net share” concept) by Parent of any Equity Interests in Parent, as applicable, made in connection with (I) the surrender of shares by employees to (x) facilitate the payment by such employees of the taxes associated with compensation received by such employees under Parent’s stock-based compensation plans and, (y) to satisfy the purchase price of nonqualified stock options and (II) the deduction by Parent, of a portion of restricted stock or performance shares previously (i.e. prior to the date of the deduction) granted to employees under Parent’s stock-based compensation plans to facilitate the payment by such employees of the taxes associated with the vesting of such restricted stock and performance shares, in an amount not to exceed (for both clauses (I) and (II)), together with all Restricted Payments made pursuant to Section 7.08(a)(xiv), $2,000,000 in the aggregate in any fiscal year; provided, in each case, that prior to and after giving effect to such repurchases, redemptions or reductions no Default or Event of Default exists or is continuing;
(v) Borrowers may make Restricted Payments in cash to Parent to the extent of the conditions set forth in clause (A), (B) or (C) below:
(A) with respect to any taxable year a Borrower is member (or treated as a disregarded entity of a member) of a consolidated, combined, or unitary income tax group (“Tax Group”) with Parent as the corporate parent of such Tax Group that is responsible under applicable law for the income or similar Taxes of Borrower and any Restricted Subsidiary of such Borrower, such Borrower may make cash distributions to Parent the proceeds of which shall be used by Parent to pay cash dividends the income or make other distributions similar Taxes of property to a Loan Partysuch Borrower and any Restricted Subsidiary of such Borrower and the Tax Group; provided that any such Restricted Payments made pursuant to Holdings under this clause subclause (iA) shall not exceed the amount of U.S. federal, state, and local income or similar Taxes such Borrowers would have paid for such taxable year and any prior taxable year had they solely filed a consolidated, unitary, or combined income tax return among themselves;
(B) the proceeds of which shall be used only (A)(x) by Parent to pay general (1) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting, tax reporting and similar expenses payable to third parties), that are reasonable and customary and incurred by Holdings in the ordinary course of business, or the amount of (2) any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of Parent attributable to the ownership or operations of any director or officer Borrower and any Restricted Subsidiary of Holdingsa Borrower, and (y3) to pay franchise taxes and similar Taxes, and other fees, taxes fees and expenses required to maintain its organizational existence; and
(C) the corporate existence proceeds of Holdings and which shall be used by Parent to satisfy its obligations under the Convertible Notes, to the extent such payments are permitted under the Intercreditor Agreement;
(zvi) [reserved];
(vii) [reserved];
(viii) to pay taxes the extent constituting a Restricted Payment, payments of the Convertible Notes made pursuant to an exchange for or out of the proceeds of Debt constituting a Permitted Refinancing of the Convertible Notes permitted under Section 7.01(xxiii);
(ix) redemptions in whole or in 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 are due such new Equity Interests contain terms and provisions at least as advantageous to 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 Holdings as 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 parent exercise of a consolidated group that includes Holdings stock options and its Subsidiaries the vesting of restricted stock and restricted stock units;
(including Unrestricted Subsidiaries); xi) Parent may, and Borrowers may make Restricted Payments to Parent to enable Parent to (A) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof and (B) honor any conversion request by a holder of convertible Debt and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Debt in accordance with its terms, in both cases of (A) and (B), in an amount not to exceed $250,000 in the aggregate (or $350,000 in the aggregate so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and continuing);
(2xii) [reserved];
(xiii) any Restricted Payment made on the Effective Date required to consummate the Plan of Reorganization;
(xiv) payments made by Parent, any Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Restricted Subsidiary of it a Borrower (including payments of principal and interest to Parent to enable Parent to make such payments) in respect of notes issued withholding or similar taxes payable upon exercise of Equity Interests by Holdings to stockholders in connection therewith)any future, provided that such payments are otherwise permitted under this SECTION 6.06; present or former employee, director, officer, manager or consultant (Cor their respective controlled Affiliates or Permitted Transferees) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting any repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the Equity Interests deemed to occur upon exercise of stock options or warrants if such equity interests Equity Interests represent a portion of the exercise price of such option options or warrantswarrants or required withholding or similar taxes (including payments to Parent in respect of the foregoing), provided that in an amount not to exceed, together with all Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(iSection 7.08(a)(iv), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind of the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 2,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datefiscal year;
(iiixv) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment[reserved];
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.
Appears in 2 contracts
Samples: Forbearance Agreement and Fourth Amendment to Loan and Security Agreement (Endurant Capital Management LP), Forbearance Agreement and Fourth Amendment to Loan and Security Agreement (DG Capital Management, LLC)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and it will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions with respect to its capital stock payable solely in additional shares of property its common stock, (ii) the Borrower's Subsidiaries may declare and pay dividends ratably with respect to a Loan Party; provided that any such Restricted Payments made their capital stock, (iii) the Borrower may declare and pay dividends to Holdings under this clause (i) shall be used only (A)(x) in an aggregate amount not in excess of $100,000 per annum to the extent required to pay general corporate overhead the operating and similar administrative expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer (including franchise taxes) of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Supermarket Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of SMG II Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viiiiv) so long as no Event of Default shall have occurred and be continuingcontinuing or shall be caused thereby, the Loan Parties Borrower may make payments to Supermarket Holdings in satisfaction of a corresponding portion of the Borrower's obligations under the Supermarket Holdings Intercompany Note at such times, in such amounts and their Subsidiaries may to such extent (and only at such times, in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (aamounts and to such extent) necessary to the extent the capacity enable Supermarket Holdings to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount regularly scheduled payments of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, principal and interest in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.Supermarket Holdings Subordinated Notes not
(b) No Loan Party willThe Borrower will not, nor and it will it not permit any Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified Subordinated 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 cancelation or termination of any such Specified Subordinated Indebtedness, except
: (i) payment of regularly scheduled interest and principal payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind of the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due in respect of any Subordinated Indebtedness in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as such indenture or other agreement may be amended from time to time to the extent permitted under Section 6.11; (ii) refinancings of Indebtedness to the extent permitted by Section 6.01(a)(v) and (vii); (iii) repayments or repurchases of all or a portion of the Subordinated Notes or the Subordinated Debentures with (A) the Net Proceeds of Specified Permitted Refinancing Transactions with respect to any Specified Real Estate not exceeding an aggregate of $100,000,000 and (B) as long as no Specified Default then exists or would arise therefrom, prepayments the Net Proceeds of any Excluded Asset Sale specified in whole or in part clause (c) of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes definition of such term; and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments sinking fund payments by the Borrower as required under the Senior Initial Loan Agreement as on June 15, 2000, and June 15, 2001, in effect on the Closing Date or any Senior Initial Loan Agreementan aggregate amount for each such payment of up to $50,000,000, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable in each case with respect to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Subordinated Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.
Appears in 2 contracts
Samples: Credit Agreement (Pathmark Stores Inc), Credit Agreement (Supermarkets General Holdings Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any each of the Loan Party or any Subsidiary of a Loan Party Parties may declare and pay cash 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 make other distributions in shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other feestheir Equity Interests, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is may make Restricted Payments, not prohibited under exceeding $2,750,000 during any fiscal year of the Senior Initial Loan Facility Borrower, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the ABL Facility from making such payments to HoldingsBorrower and its Subsidiaries, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2iv) the Borrower Loan Parties may make distributions to any direct or indirect parent entity of any consolidated, affiliated or unitary group of which any such Loan Party is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, a member in an amount sufficient to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness any Taxes imposed on such parent under applicable law to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, attributable to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions income or operations of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearParties.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness permitted under Section 6.01, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Subordinated Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment payment of regularly scheduled interest and principal payments as and when due in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds respect of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making Indebtedness permitted under Section 6.01(k) so long as, both before and after giving pro forma effect to such payment no Default or prepaymentEvent of Default shall have occurred and be continuing;
(iv) refinancings of Indebtedness to the extent permitted by Section 6.01;
(Av) mandatory prepayments 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 Borrower as required under terms of Section 6.05; and
(vi) all amounts owing to Revolving Agent and Revolving Lenders pursuant to the Senior Initial Loan Agreement Revolving Credit Agreement, as in effect on the Closing Date date hereof or any Senior Initial Loan as may be amended, modified, supplemented, refinanced or replaced from time to time in accordance with the Intercreditor Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (RTI Surgical Holdings, Inc.), Second Lien Credit Agreement (RTI Surgical Holdings, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willCCSC will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party Subsidiaries may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only ratably with respect to clause (i) thereof as it relates to non-payment of interest)their Equity Interests, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries CCSC may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreementat such times and in such amounts, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed exceeding $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause 1,000,000 during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (pursuant to and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) accordance with stock option plans or other benefit plans for management or employees of CCSC and its Subsidiaries and (viiiii) CCSC may, subject to Section 6.01(b), make dividends consisting solely of this SECTION 6.06, one hundred percent (100%) shares of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearits capital stock.
(b) No Loan Party willCCSC will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 cancelation or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility any Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective DateIndebtedness;
(v) partial redemption or prepayment payment by Holdings Loan Parties of the Holdco Initial Indebtedness owed to Loan Facility Parties and payment by Subsidiaries which are not Loan Parties of Indebtedness owed to the extent necessary to make an AHYDO “catch-up” payment thereonCCSC and its Subsidiaries;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payment of any Indebtedness constituting Senior Initial Loan Facility Indebtedness under revolving credit facilities permitted under clause (including, without limitation, Senior Initial Loans and any Senior Notesix) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.01(a);
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement repurchases of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (includingPublic Debt that is scheduled to mature prior to December 8, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.032003; and
(viii) payment of Indebtedness created pursuant to any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Permitted Receivables Financing.
Appears in 2 contracts
Samples: Credit Agreement (Crown Cork & Seal Co Inc), Credit Agreement (Crown Cork & Seal Co Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrowers will not, nor will it the Lead Borrower permit any Subsidiary of it to, the other Credit Parties to declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayment or any payments on the Guarantees set forth in Section 6.1(h)(i), except thatthat the Borrowers and the other Credit Parties shall be permitted to:
(ia) Any Loan Party or any Subsidiary make Restricted Payments consisting of a Loan Party may declare and pay cash dividends or make other distributions on preferred stock of property the Credit Parties in an amount not to a Loan Party; provided that exceed $500,000 in any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) Fiscal Year so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and continuing;
(2b) make Restricted Payments to any other Credit Party;
(c) make Restricted Payments as long as after giving effect thereto the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to HoldingsPayment Conditions are then satisfied;
(d) pay regularly scheduled interest, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such other payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due on a non-accelerated basis and prior to maturity in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility any Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if Section 6.1 at such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long times as no Event of Default shall have occurred and be continuingis in existence or would arise as a result of such payment; provided that with respect to any earnout consideration payable by any Borrower for any Permitted Acquisition or other Permitted Investment, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments permitted by Section 6.1(l), in an aggregate amountamount greater than $10,000,000, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year Payment Conditions shall be deemed made, first, satisfied after giving effect to such payment;
(e) pay any principal payments required to be paid in respect of amounts carried over from the prior Fiscal Year Permitted Senior Debt solely as permitted to be paid pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind of the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Permitted Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03Debt; and
(viiif) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement Permitted Refinancings of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Genesco Inc), Credit Agreement (Genesco Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrowers may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment their common stock payable solely in additional shares of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred its common stock and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness cash to the extent necessary to make an AHYDO “catch-up” payment thereon;
after giving effect thereto the Loan Parties will remain in compliance with Section 7.12, and (ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, declare and pay dividends ratably with respect to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearEquity Interests.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (Awith the prior written consent of the Administrative Agent, and after satisfying the requirements of Section 2.17(c) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrome), prepayments in whole or in part payment of Indebtedness permitted by Section 7.01 with the proceeds of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Dateissuance of Equity Interests;
(iii) prepayment payment of regularly scheduled interest and principal payments as and when due in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds respect of any equity securities issued or capital contributions received by Indebtedness (subject to any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentsubordination agreements);
(iv) with the prior written consent of the Administrative Agent, prepayment of Indebtedness permitted by Section 7.01 provided that (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date no Default or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, Event of Default has occurred and is continuing; and (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as making of such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those prepayment will not result in the Senior Note Indenture on the First Amendment Effective Dateoccurrence of a Default or Event of Default after giving effect thereto;
(v) partial redemption or prepayment by Holdings refinancings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;permitted by Section 7.01; and
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payment of any secured Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out that becomes due as a result of the proceeds voluntary sale or transfer of the substantially concurrent issuance property or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01assets securing such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Smith & Wesson Holding Corp), Credit Agreement (Smith & Wesson Holding Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(xA) (x) to pay general corporate corporate, overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Lead Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Term Loan Financing Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Lead Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Term Loan Financing Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Lead Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year); and
(viii) so long as no Event of Default shall have occurred and be continuingthe Payment Conditions are satisfied, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (viviii) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind of the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromthe Payment Conditions are satisfied, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Lead Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Lead Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Lead Borrower than those in the Senior Note Indenture on the First Second Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, repayment purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Lead Borrower incurred in compliance with Section 6.01;
(vii) any repayment, repayment purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and;
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower Borrowers incurred in compliance with Section 6.01;
(ix) any prepayments or repayments of Indebtedness under the Term Loan Financing Facility as long as (A) immediately before and after giving pro forma effect thereto, no Event of Default shall have occurred and be continuing and (B) either (1) (x) on a pro forma basis giving effect thereto, on each day during the thirty (30) day period immediately preceding such prepayment or repayment and on the date thereof after giving effect thereto, Excess Availability shall be greater than the lesser of (I) $65,625,000 and (II) seventeen and one half percent (17.5%) of the Total Commitments and (y) immediately before and after giving pro forma effect thereto, the Consolidated Fixed Charge Coverage Ratio shall be at least 1.0 to 1.0 or (2) on a pro forma basis giving effect thereto, on each day during the thirty (30) day period immediately preceding such prepayment or repayment and on the date thereof after giving effect thereto, Excess Availability shall be greater than the lesser of (x) $93,750,000 and (y) twenty-five percent (25%) of the Total Commitments; and
(x) any prepayments or repayments of Indebtedness under the Term Loan Financing Facility with a Permitted Refinancing thereof.
Appears in 2 contracts
Samples: Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, Payment except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash 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 make other distributions in shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other feestheir Equity Interests, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is may make Restricted Payments, not prohibited under exceeding $2,500,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Senior Initial Loan Facility or the ABL Facility from making such payments to HoldingsBorrower and its Subsidiaries, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2iv) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to may pay interest as cash in lieu of fractional shares and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make any Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent Payment made at a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 time when Section 6.12 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearsatisfied.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make make, directly or agree to pay or make indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified Subordinated 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 such Specified Subordinated Indebtedness, except:
(i) payment of regularly scheduled interest and principal payments as and when due in respect of any Subordinated Indebtedness permitted under Section 6.01, other than payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind respect of the Loan Parties and their SubsidiariesSubordinated Indebtedness prohibited by the subordination provisions thereof;
(ii) (A) scheduled payments refinancings of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of Indebtedness to the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Dateextent permitted by Section 6.01;
(iii) prepayment in whole or in part payment of secured Indebtedness that becomes due as a result of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, voluntary sale or transfer of the Holdco Initial Loan Facility property or assets securing such Indebtedness to the Term Loan Financing Facility with extent such sale or transfer is permitted by the proceeds terms of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.05; and
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) payments made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with at a time when Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.12 is satisfied.
Appears in 2 contracts
Samples: Credit Agreement (Roblox Corp), Credit Agreement (Roblox Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayment or incur any obligation, (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends with respect to its capital stock payable solely in additional shares of its common stock, (ii) Subsidiaries may declare and pay dividends to the Borrower or make other distributions any Guarantor, and (iii) the Borrower may repurchase or redeem shares of property to a Loan Party; its common stock provided that the aggregate amount paid by the Borrower for such repurchases and redemptions shall not at any such Restricted Payments made time exceed the lesser of (A) the amount equal to Holdings under this clause (i) shall be used only (A)(x) the sum of 50% of the Free Cash Flow for Borrower’s fiscal quarter ending September 30, 2002, plus 50% of the Free Cash Flow for each fiscal quarter thereafter to pay general corporate overhead and similar expenses incurred by Holdings in including the ordinary course of businessmost recent fiscal quarter then ended, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year3,500,000.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility any Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 8.01;
(iv) (A) mandatory prepayments payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, provided that such sale or transfer is otherwise permitted by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan this Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption payment or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;Capital Lease Obligations, so long as no Default is existing or would result therefrom; and
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payment when due of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01obligations under Hedging Agreements.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No The Loan Party will, nor Parties will it permit any Subsidiary of it to, not declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except thatthat the Loan Parties may make Restricted Payments so long as the Payment Conditions are satisfied at the time of the making of and after giving effect to such Restricted Payment; provided that for purposes of determining compliance with the Payment Conditions with respect to this SECTION 6.6(a) only, the percentage used for the Pro Forma Availability Condition shall be twenty-five percent (25%).
(ib) Any Loan Party or may make a Restricted Payment to any Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;.
(iic) The Loan Parties and their Subsidiaries Xxxx may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings stock or any Subsidiary of it other equity interests in connection with the Xxxx deemed to occur upon exercise of stock options or warrants if such stock or equity interests represent a portion of the exercise price of such option options or warrants, provided that Restricted Payments in each case, to the extent not made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrowercash;
(vid) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the The Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, will not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for at any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it totime, 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except
except (i) payment of regularly scheduled payments or mandatory prepayments of principal, interest and premium, if any, arising solely with respect to such payment in Capital Stock respect of any Indebtedness permitted under Section 6.1 hereof, (as long as no Change ii) if the Payment Conditions are satisfied at the time of the making of and after giving effect to such payment (provided that for purposes of determining compliance with the Payment Conditions with respect to this Section 6.6(d)(ii) only, the required Consolidated Fixed Charge Coverage Ratio shall be equal to or greater than 1.0:1.0), and (iii) Permitted Refinancings of Indebtedness. Notwithstanding anything to the contrary in Control would result therefrom) and payments of interest in-kind of this Agreement, the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromshall cause the ZC Partnership to not make any Restricted Payment to any other Person, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by other than Restricted Payments to any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance consistent with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01past practice.
Appears in 1 contract
Samples: Credit Agreement (Zale Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No The Loan Party willParties will not, nor and will it not permit any Subsidiary of it their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
as long as no Default or Event of Default exists or would arise therefrom: (i) Any the Loan Party or any Subsidiary of a Loan Party Parties may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility IndebtednessPermitted Dividends; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries the Lead Borrower may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) the Trans World Entertainment Corporation 2005 Long Term and Incentive Share Award Plan and any other plans of the Loan Parties existing on the Effective Date and described in the Lead Borrower’s Form 10-K for any Fiscal Year exceeds ended January 31, 2010, each as in effect as of the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearEffective Date.
(b) No The Loan Party willParties will not, nor and will it not permit any Subsidiary of it their Subsidiaries to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, exceptexcept as long as no Default or Event of Default has occurred and is continuing or would result from such payments:
(i) payment of regularly scheduled interest and principal payments as and when due in Capital Stock (as long as no Change in Control would result therefrom) and payments respect of interest in-kind of the Loan Parties and their Subsidiaries;any other Indebtedness permitted hereunder; and
(ii) (A) scheduled payments refinancings of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made permitted by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Restricted Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except thatexcept:
(i) Any Loan Party each Restricted Subsidiary of Holdings may make Restricted Payments to Holdings or any Restricted Subsidiary of Holdings (and, in the case of any such Subsidiary that is not a Loan Party may declare and pay cash dividends or make wholly-owned Subsidiary, to each other distributions owner of property Equity Interests of such Subsidiary ratably based on their relative ownership interests of the relevant class of Equity Interests); provided, that, in the case of any Restricted Payment to a Loan Party; provided that Holdings, any such Restricted Payments Payment is made not earlier than five (5) Business Days prior to Holdings under the expected use of the proceeds of such Restricted Payment in a manner otherwise permitted by this clause Agreement;
(i) shall be used only (A)(xii) to pay general corporate overhead the extent constituting a Restricted Payment, the Borrower, New International Holdings and similar expenses incurred any Restricted Subsidiary may consummate any transaction permitted by Section 6.03 and Section 6.04 (other than Section 6.04(j), (m), (n), (q) and (t));
(iii) to the extent constituting a Restricted Payment, the conversion of the Senior Secured Convertible Notes into Equity Interests pursuant to the terms thereof;
(iv) Restricted Payments by the Borrower or New International Holdings to Holdings, the proceeds of which are used within five (5) Business Days of the receipt of such Restricted Payment by Holdings to permit Holdings to make repurchases, redemptions or reductions in number of shares issued (including, by utilization of the ordinary course of business, or the amount "net share" concept) by Holdings of any indemnification claims Equity Interests in Holdings, as applicable, made in connection with (I) the surrender of shares by any director or officer employees to (x) facilitate the payment by such employees of the taxes associated with compensation received by such employees under Holdings’ stock-based compensation plans and, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain satisfy the corporate existence purchase price of Holdings nonqualified stock options and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2II) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to deduction by Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of restricted stock or performance shares previously (i.e. prior to the exercise price date of the deduction) granted to employees under Holdings’ stock-based compensation plans to facilitate the payment by such employees of the taxes associated with the vesting of such option or warrantsrestricted stock and performance shares, provided that in an amount not to exceed (for both clauses (I) and (II)), together with all Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind of the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.112
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash 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 make other distributions in shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other feestheir Equity Interests, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) and in accordance with stock option plans or other benefit plans for any Fiscal Year exceeds management or employees of the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above Borrower and its Subsidiaries and (civ) the amount Borrower may pay or make dividends or distributions of excess capacity that may be carried over from a prior Fiscal Year pursuant cash to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearits shareholders so long as there exists no Default or Event of Default and none would result after giving effect thereto.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.01; and
(iv) (A) mandatory prepayments by the Borrower payment of secured Indebtedness that becomes due as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings a result of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance voluntary sale or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out transfer of the proceeds of the substantially concurrent issuance property or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01assets securing such Indebtedness.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Company will not, nor will it permit any Subsidiary of it to, declare or make, or agree to make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that the Company or any Subsidiary may:
(i) declare and make dividend payments or other distributions payable solely in its common stock or in options, warrants, or other rights to purchase common stock;
(ii) 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 for consideration not exceeding $100,000 in the aggregate in any calendar year;
(iii) in the case of a Subsidiary, declare and pay dividends and other distributions ratably to the holders of its Equity Interests; and
(iv) make payments not to exceed $250,000 in the aggregate to holders of its Series B-1 Preferred Shares, Series C-1 Preferred Shares or Series C-2 Preferred Shares in lieu of the issuance of fractional shares of its capital stock.
(b) The Company will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance, retirement, acquisition, cancellation cancelation or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind payment of the Loan Parties and their SubsidiariesObligations;
(ii) (A) payment of scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Series B Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 (as defined in the aggregate in any Fiscal Year and not exceeding $25,000,000 in Securities Purchase Agreement) or other subordinated Indebtedness prohibited by the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, extent the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received Indebtedness resulting therefrom is permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;Indebtedness; and
(v) partial redemption payments which correspond to scheduled payments of principal on the Industrial Revenue Bonds.
(c) Neither the Company nor any Subsidiary shall enter into or prepayment by Holdings 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 the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance Company or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01a Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Labone Inc/)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or 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) each of 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 ratably with respect to their Equity Interests, and (iii) so long as no Event of Default exists, the Borrowers may make Restricted Payments, not exceeding $200,000 during any fiscal year of the Company, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrowers and their Subsidiaries.
(b) Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted under Section 6.01, other than payments in respect of the Subordinated Indebtedness (Aother than the FFC Subordinated Debt, the Roundball Subordinated Debt and the CAD Subordinated Debt) prohibited by the subordination provisions thereof;
(iii) with respect to the FFC Subordinated Debt, commencing January 1, 2018, payments of regularly scheduled quarterly payments of principal and interest so long as the FFC Subordinated Payment Conditions are satisfied;
(iv) with respect to the Roundball Subordinated Debt, commencing January 1, 2018, payments of regularly scheduled payments of interest so long as the Roundball Subordinated Payment Conditions are satisfied;
(v) with respect to the CAD Subordinated Debt, payments of regularly scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments CAD Subordinated Payment Conditions are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereonsatisfied;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement refinancings of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made to the extent permitted by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;; and
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payment of any secured Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out that becomes due as a result of the proceeds voluntary sale or transfer of the substantially concurrent issuance property or assets securing such Indebtedness to the extent such sale of, Indebtedness or transfer is permitted by the terms of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.05.
Appears in 1 contract
Samples: Credit Agreement (Hickok Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayment or incur any obligation, (contingent or otherwise) to do so, except that
(ia) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due its capital stock payable solely in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of additional shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Yearits common stock, (b) Restricted Payments made pursuant Subsidiaries may declare and pay dividends to this clause during the Borrower or any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above Guarantor and (c) the Borrower or any Subsidiary may acquire Equity Interests in the Borrower in an amount not to exceed an aggregate amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year$5,000,000 under an annual stock repurchase plan.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Debt prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 8.01; and
(iv) (A) mandatory prepayments by the Borrower payment of secured Indebtedness that becomes due as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings a result of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance voluntary sale or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out transfer of the proceeds of the substantially concurrent issuance property or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01assets securing such Indebtedness.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(ia) Any Loan Party or any Subsidiary of a Loan Party the Borrower and Parent may declare and pay dividends with respect to its common stock payable solely in additional shares of its common stock, (b) so long as no Default exists or would arise as a result thereof, Subsidiaries of the Borrower may declare and pay dividends ratably to the holders of 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) through (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 exists or would arise as a result thereof, the Borrower may pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made the Parent in an amount sufficient to Holdings under this clause allow the Parent to pay (i) shall be used only (A)(x) to pay general corporate overhead reasonable audit and similar other accounting expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (yii) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are Taxes due and payable by Holdings as the parent of a consolidated group that includes Holdings Parent to any taxing authority and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments reasonable expenses incurred in connection with the repurchase preparation of Capital Stock of Holdings or any Subsidiary of it (including payments of principal related Tax returns and interest in respect of notes issued by Holdings to stockholders in connection therewith)filings, provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties reasonable and their Subsidiaries may make Restricted Payments on necessary expenses (including professional fees and expenses) incurred by the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it Parent in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in registration, public offerings and exchange listing of equity securities and maintenance of the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdingssame, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed madecompliance with reporting obligations under, firstor in connection with compliance with, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above andfederal or state securities laws, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount indemnification and reimbursement of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal directors, officers and interest employees in respect of notes issued liabilities relating to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 their serving in any Fiscal Yearsuch capacity, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, or obligations in respect of amounts carried over from the prior Fiscal Year pursuant to clause director and officer insurance (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(iincluding premiums therefor), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind of the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments other reasonable expenses incurred by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those Parent in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings ordinary course of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01business.
Appears in 1 contract
Samples: Credit Agreement (Natural Grocers by Vitamin Cottage, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
that (i) Any Loan Party or any Subsidiary of a Loan Party Holdings may declare and pay cash dividends with respect to its capital stock payable solely in additional shares of its capital stock, (ii) Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) Holdings may make Restricted Payments, not exceeding $2,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of businessbenefit plans for directors, management or the amount of any indemnification claims made by any director or officer employees of Holdings, (y) to pay franchise taxes the Borrower and other feesthe Subsidiaries, taxes and expenses required to maintain including the corporate existence redemption or purchase of capital stock of Holdings and held by former directors, management or employees of Holdings, the Borrower or any Subsidiary following termination of their employment, (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iv) the Borrower is may pay dividends to Holdings at such times and in such amounts, not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments exceeding $2,000,000 during any fiscal year, as shall be necessary to permit Holdings to discharge its permitted liabilities and (v) Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under and the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, as and to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on contemplated by the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearRecapitalization Agreement.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 cancelation or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and in respect of any Indebtedness, other than (A) payments in respect of the Junior Subordinated Note prohibited by the subordination provisions thereof, (B) as long as no Specified Default then exists or would arise therefrom, prepayments principal payments in whole or in part respect of the Senior Initial Loan Facility IndebtednessJunior Subordinated Note and (C) prior to the Transition Date, Additional Borrower Unsecured Senior Notes and cash interest payments in respect of the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 Junior Subordinated Note unless, in the aggregate case of any such payment specified in any Fiscal Year this clause (C) prior to the Transition Date, at the time of such payment and after giving pro forma effect thereto the Leverage Ratio shall not exceeding $25,000,000 in exceed 1.50 to 1.00 and such payment is due and payable on or after the aggregate since fifth anniversary of the Closing Datedate of issuance of the Junior Subordinated Note;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective DateIndebtedness;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon[Intentionally Omitted];
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payments in respect of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Permitted Receivables Facility;
(vii) any repayment, payments on account of the purchase, redemption, repurchase, defeasance or other acquisition redemption or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness First Lien Notes or Second Lien Notes, provided that (includingA) after giving effect to such purchase, without limitationredemption or retirement, Holdco Initial Loans no Default shall have occurred and be continuing, (B) any Holdco Notes) such purchase, redemption or retirement shall be made by exchange for, or out of during the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred Refinancing Period and otherwise in compliance with Sections 6.01 the provisions of the First Lien Note Indenture or Second Lien Note Indenture, as applicable (it being understood and 6.03agreed that any First Lien Notes or Second Lien Notes purchased, redeemed or retired pursuant to this clause (vii) shall immediately be canceled) and (C) in the case of any such payment to be made by the Borrower pursuant to this clause (vii) (other than a payment made with the Net Proceeds of a Specified Equity Offering (including the offering consummated on February 9, 2004) or Permitted Refinancing Indebtedness) on account of the purchase, redemption or retirement of any First Lien Notes or Second Lien Notes (including payments in respect of redemption premiums or transaction fees or expenses), such payment shall be permitted only if, on a pro forma basis after giving effect thereto, the aggregate amount of cash and Permitted Investments owned by the Borrower and the Subsidiary Loan Parties (excluding any such cash and Permitted Investments that are subject to any Lien in favor of any Person other than the Collateral Agent for the benefit of the Secured Parties (it being understood that any such cash and Permitted Investments subject to a Lien in favor of the Collateral Agent to secure the Obligations shall not be excluded by virtue of being subject to Liens under the First Lien Documents and Second Lien Documents) and excluding cash and Permitted Investments escrowed or otherwise segregated to redeem or repurchase Indebtedness) is not less than $150,000,000; provided, however, that the foregoing clause (C) shall not apply to any purchase of First Lien Notes or Second Lien Notes (i) consummated in full pursuant to the Tenders during the period beginning on the Restatement Effective Date and ending on the Final Tender Settlement Date or (ii) after the Final Tender Settlement Date in an aggregate principal amount not to exceed $75,000, in each case so long as (1) all tender premiums, fees and expenses in connection therewith are paid from cash held by the Borrower on the date of such purchase and (2) after giving effect to any such purchase, the aggregate amount of all fees and expenses incurred in connection with the Restatement Transactions, including all tender premiums, fees and expenses in connection with any purchases of First Lien Notes and Second Lien Notes pursuant to the Tenders, and any tender premiums, fees and expenses incurred in connection with any purchases of First Lien Notes or Second Lien Notes after the Final Tender Settlement Date, does not exceed $90,000,000;
(viii) payments on account of the purchase, redemption or retirement of all or a portion of the Junior Subordinated Note with the Net Proceeds of any Permitted Junior Subordinated Note Refinancing Indebtedness or Specified Junior Subordinated Note Offering, or an exchange of Equity Interests issued by Holdings, in compliance with the other applicable provisions of this Agreement, for all or a portion of the Junior Subordinated Note; provided that the Junior Subordinated Note (or such portion) shall be retired and canceled;
(ix) payments by the China JV on account of the purchase, redemption or retirement of Indebtedness of the China JV from cash proceeds generated from operations of the China JV; and
(viiix) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement the conversion of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out up to $18,500,000 of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Czech Subsidiary owed to the Borrower incurred as of the Restatement Effective Date into Equity Interests in compliance with Section 6.01such Czech Subsidiary issued to the Borrower.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary each of a Loan Party the Borrowers may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates its common stock payable solely in additional shares of its common stock, and, with respect to non-payment its preferred stock, payable solely in additional shares of interest)such preferred stock or in shares of its common stock, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iii) the Borrowers may make Restricted Payments, not exceeding $500,000 during any fiscal year of the Company, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrowers and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries the Borrowers may make other Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion satisfaction of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearPayment Condition.
(ba) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness permitted under Section 6.01, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments 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 Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Dateof Section 6.05;
(v) partial redemption or prepayment by Holdings prepayments of Indebtedness incurred pursuant to Section 6.01(e) if the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereonPayment Condition is satisfied;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payments of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans intercompany loans and any Senior Notes) made advances to the extent permitted by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;Global Intercompany Note; and
(vii) any repaymenttermination or similar payments in respect of Swap Agreement obligations arising under that certain ISDA Master Agreement dated January 30, purchase2018 by and between Citizens Bank of Pennsylvania and CSS Industries, redemption, repurchase, defeasance Inc. in an aggregate amount not to exceed $275,000 so long as (i) no Default or other acquisition Event of Default has occurred and is continuing or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness would result immediately after giving effect to such payments and (including, without limitation, Holdco Initial Loans and any Holdco Notesii) such payments are made by exchange for, or out within thirty (30) days of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Effective Date.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No The Loan Party willParties will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
as long as no Default or Event of Default exists or would arise therefrom (i) Any the Loan Party or any Subsidiary of a Loan Party Parties may declare and pay dividends with respect to their capital stock payable solely in additional shares of or warrants to purchase their common stock, (ii) the Loan Parties may declare splits, reverse splits or reclassifications of their stock into additional or other shares of their common stock, (iii) the Borrower may pay cash dividends or make other distributions of property otherwise transfer funds to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar the Parent for operating expenses incurred by Holdings in the ordinary normal course of businessbusiness by the Parent or paid by the Parent on behalf of the Borrower (including all payroll and benefits costs for all Subsidiaries of the Parent, or the amount of any indemnification claims made by any director or officer of Holdingstelephone, (y) to pay franchise taxes travel, rent and other feesoccupancy costs, taxes professional expenses, including consulting, audit, accounting and expenses required to maintain the legal expenses, corporate existence of Holdings insurance expenses, data processing costs and other operating expenses), and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iv ) the Borrower is Parent may pay cash dividends in an amount not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;118
(iib) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type describedwill not, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall will not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 of, interest on, or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, fees or other charges with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified IndebtednessIndebtedness (other than the Obligations), except
(i) payments in Capital Stock (except as long as no Change in Control Event of Default has occurred and is continuing or would result therefromfrom such payments: (i) payment of regularly scheduled interest, fees, and charges and principal payments of interest in-kind of the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due in respect of any other Indebtedness permitted hereunder; and (Bii) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part refinancings of Indebtedness to the extent permitted by Section 6.01.
(c) Notwithstanding any of the Senior Initial Loan Facility Indebtednessrestrictions or limitations described in Sections 6.06(a) or 6.06(b ), Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notesbut subject to Section 6.06(d ), the Holdco Initial Loan Facility or the Term Loan Financing Facility Parent 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 proceeds received and tax benefits realized by the Parent or such Subsidiary resulting from or related to the exercise of stock options granted pursuant to stock option plans adopted by the Parent or such Subsidiary, which options are exercised in accordance with the terms and conditions described in such plans.
(d) Notwithstanding anything to the contrary contained herein, (i) in the event of a Restricted Payment in respect of Material Intellectual Property (or the equity interests of any equity securities issued or capital contributions received Subsidiary that owns Material Intellectual Property), such Restricted Payment shall not be permitted unless the recipient thereof agrees in writing to be bound by any a non-exclusive royalty- free worldwide license of such Material Intellectual Property in favor of the Collateral Agent for use in connection with the exercise of the rights and remedies of the Credit Parties, which license shall be in form and substance reasonably satisfactory to the Collateral Agent, and (ii) no Loan Party or any Subsidiary for shall make any Restricted Payment in respect of Material Intellectual Property (or the purpose equity interests of making such payment or prepayment;
(ivany Subsidiary that owns Material Intellectual Property) (Ain each case, whether as a disposition permitted under Section 6.05, a Permitted Investment, a Permitted Encumbrance or otherwise) mandatory prepayments by without the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings consent of the Holdco Initial Loan Facility Indebtedness to Agents and the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Required Lenders.
Appears in 1 contract
Samples: Fifth Amendment to Second Amended and Restated Credit Agreement (Stage Stores Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash 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 make other distributions in shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other feestheir Equity Interests, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is not prohibited under the Senior Initial Loan Facility may purchase of capital stock from former or the ABL Facility from making such payments to Holdingscurrent employees, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal officers, consultants and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made directors pursuant to this clause (v) shall employee stock purchase plans, stockholder plans, director or consultant stock option plans, employee stock option agreements, restricted stock agreements, equity incentive plans or other similar agreements or plans; provided such purchases do not exceed $5,000,000 in any Fiscal Year of the Borrower;
aggregate per fiscal year, and (viiv) Holdings the Borrower may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplicationPayments, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ $5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; providedduring any fiscal year, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) and in accordance with stock option plans or other benefit plans for any Fiscal Year exceeds management or employees of the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above Borrower and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearits Subsidiaries.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness permitted under Section 6.01, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in other than payments prohibited by any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Dateapplicable subordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.01; and
(iv) (A) mandatory prepayments by the Borrower payment of secured Indebtedness that becomes due as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings a result of the Holdco Initial Loan Facility voluntary sale or transfer of the property or assets securing such Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance such sale or other acquisition or retirement transfer is permitted by the terms of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.05.
Appears in 1 contract
Samples: Credit Agreement (FIGS, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrowers may declare and pay cash 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 ratably with respect to their Equity Interests, and (iii) the Company may pay dividends and make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness pursuant to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Shareholder Rights Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness permitted under Section 6.01, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.01; and
(iv) (A) mandatory prepayments by the Borrower payment of secured Indebtedness that becomes due as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings a result of the Holdco Initial Loan Facility voluntary sale or transfer of the property or assets securing such Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance such sale or other acquisition or retirement transfer is permitted by the terms of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.05.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor Borrower will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party each Borrower may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates its common stock payable solely in additional shares of its common stock, and, with respect to non-payment its preferred stock, payable solely in additional shares of interest), SECTION 7.01(h) such preferred stock or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect shares of the Holdco Initial Loan Facility Indebtednessits common stock; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties any Borrower (other than the Company) may declare and pay dividends ratably with respect to their Subsidiaries Equity Interests; (iii) any Borrower may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
any other Borrower that is its direct parent; (iv) The Loan Parties the Company may settle stock options and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions warrants in common stock of the type described, Company upon conversion; and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries the Company may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding unlimited amount if the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearPayment Condition is satisfied.
(b) No Loan Party will, nor Borrower will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received Capital Lease Obligations permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.01(e); and
(iv) (A) mandatory prepayments by any prepayment of Indebtedness in connection with the Borrower as required under the Senior Initial Loan cancellation, termination or unwinding of any Permitted Commodity Swap Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable Swap Agreement permitted pursuant to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;Section 6.07; and
(v) partial redemption if the Payment Condition is satisfied, repayments of subordinated intercompany Indebtedness and prepayments or prepayment by Holdings repurchases of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make Indebtedness, each in an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01unlimited amount.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions with respect to its common stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other feestheir Equity Interests, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) and in accordance with stock option plans or other benefit plans for any Fiscal Year exceeds management or employees of the aggregate amount of Restricted Payments made during such Fiscal YearBorrower and its Subsidiaries, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (civ) the amount Borrower may make payments of excess capacity that may cash dividends with respect to its common stock, so long as (A) as of the date of any such payment and after giving effect thereto, no Default or Event of Default shall exist and (B) both before and after giving effect to any such payment, on a pro forma basis, Availability shall not be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearless than 17.5% of the Commitment.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness permitted under Section 6.01, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancing’s of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.01; and
(iv) (A) mandatory prepayments by the Borrower payment of secured Indebtedness that becomes due as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings a result of the Holdco Initial Loan Facility voluntary sale or transfer of the property or assets securing such Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance such sale or other acquisition or retirement transfer is permitted by the terms of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.05.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willHoldings will not, nor and will it not permit any Restricted Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except thator incur any obligation (contingent or otherwise) to do so, except:
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash 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) Restricted Subsidiaries may declare and pay dividends ratably with respect to their capital stock, membership or partnership interests or other similar Equity Interests,
(iii) Holdings may, or may declare and pay dividends or make other distributions to any Parent, the proceeds of property to which are used by a Loan PartyParent to, purchase or redeem Equity Interests of Holdings or a Parent acquired by current or former officers, employees, consultants or directors (or their estates or beneficiaries under their estates) of such Parent, Holdings, the Borrower or any Restricted Subsidiary upon such Person’s death, disability, retirement or termination of employment; provided that any the aggregate amount of such Restricted Payments made to Holdings purchases or redemptions under this clause (iiii) shall not exceed $15,000,000 in any fiscal year (and, to the extent that the aggregate amount of purchases or redemptions made in any fiscal year pursuant to this clause (iii) is less than $15,000,000, the amount of such difference may be carried forward and used for such purpose in the following fiscal year subject to an aggregate cap of $30,000,000 that may be expended in any fiscal year),
(iv) Holdings may make Restricted Payments to a Parent to be used only (A)(x) by such Parent solely 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 similar other compensation of employees) and other expenses in its capacity as the parent of Holdings incurred by Holdings or a Parent in the ordinary course of businessits 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 Holdings 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 a Parent is the common parent (a “Tax Group”), Holdings may make Restricted Payments to such Parent in an amount necessary to enable such Parent 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 Holdings and/or its applicable Subsidiaries; provided that the amount of any indemnification claims such Restricted Payments pursuant to this clause (v) shall not exceed the amount of such Taxes that Holdings and/or its applicable Subsidiaries would have paid had Holdings 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, or will be within 60 days of such payment, made by such Unrestricted Subsidiary to Holdings or any director or officer of Holdings, its Restricted Subsidiaries for such purpose,
(yvi) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence cashless repurchases of Equity Interests of Holdings and 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,
(zvii) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Restricted Subsidiaries may 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 (including Unrestricted Subsidiariesprovided 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) [reserved],
(ix) Holdings may, or may make Restricted Payments to any Parent to enable such Parent to, pay dividends on its common stock in an aggregate amount not to exceed $60,000,000 in any fiscal year,
(x) Holdings and the Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount not exceeding the Available Amount immediately prior to the time of the making of such Restricted Payment; provided that (B) so long as (1x) no Event of Default has occurred and is continuing or would arise result therefrom and (2y) immediately after giving effect to such Restricted Payment on a Pro Forma Basis, the Borrower is Total Net Leverage Ratio does not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments exceed 5.75:1.00,
(xi) Holdings may make Restricted Payments to Holdingsany Parent to pay any non-recurring fees, to make payments cash charges and cost expenses incurred in connection with the repurchase issuance of Capital Stock Equity Interests or Indebtedness, in each case only to the extent that such transaction is not consummated,
(xii) Holdings and its Restricted Subsidiaries may make additional Restricted Payments in an aggregate amount not to exceed the greater of Holdings $50,000,000 and 1.5% of Total Assets (together with the aggregate amount of any prepayments, redemptions, defeasances, repurchases or any Subsidiary other retirement of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewithSpecified Indebtedness under Section 6.08(b)(iv), ); provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise result therefrom,
(xiii) Holdings 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 (2y) immediately after giving effect to such Restricted Payment on a Pro Forma Basis, the Borrower is Total Net Leverage Ratio does not prohibited under exceed 4.50:1.00,
(xiv) Holdings and its Restricted Subsidiaries may make payments for the Senior Initial Loan Facility repurchase of Equity Interests deemed to occur upon the exercise of options, rights or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness warrants to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests Equity Interests represent a portion of the exercise price of such option those options, rights or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;and
(vixv) Holdings and its Restricted Subsidiaries may make cash payments in lieu of fractional shares issuable as dividends on common stock, preferred stock or upon the conversion of any convertible debt securities of Holdings and its Restricted Payments constituting other repurchases Subsidiaries. and provided, further, that cancellation of Capital Stock of Indebtedness owing to Holdings or any Restricted Subsidiary from members of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year management of Holdings, (B) any of Holdings’ direct or indirect parent companies or any of Holdings’ Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders Subsidiaries in connection with the a repurchase of shares Equity Interests of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall ’ direct or indirect parent companies will not be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from constitute a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearPayment.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind of the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of it the Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Company may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of at any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes time that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom result therefrom, (ii) Subsidiaries may declare and pay dividends ratably with respect to their capital stock and (2iii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to Subsidiaries may make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith)for acquisitions permitted under Section 6.04(e) above, provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and or is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party willThe Company will not, nor will it permit any Subsidiary of it the Subsidiaries to, make or agree to pay or make any payment make, directly or other distribution (whether in cashindirectly, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of the Loan Parties and their SubsidiariesIndebtedness created under this Agreement;
(ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrompursuant to existing amortization schedules, prepayments in whole (except for Indebtedness permitted by SECTION 6.01(j)), and provided no Event of Default has occurred or in part is continuing, refinancings of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datethat is permitted by Section 6.01;
(iii) prepayment in whole or in part payment of secured Indebtedness that becomes due as a result of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, voluntary sale of transfer of the Holdco Initial Loan Facility property or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making assets securing such payment or prepayment;Indebtedness; and
(iv) (A) mandatory prepayments payment of Indebtedness of any Person acquired by the Borrower as required under the Senior Initial Loan Agreement as in effect Company or any Subsidiary that exists on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long date of such acquisition; provided that such Person becomes a Subsidiary as a result of such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01acquisition.
Appears in 1 contract
Samples: Credit Agreement (Idx Systems Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Parent Borrower will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Subsidiaries may declare and pay cash dividends or ratably with respect to their Equity Interests, (ii) the Parent Borrower may declare and pay dividends with respect to its common stock payable solely in additional shares of its common stock and (iii) the Parent Borrower may make other distributions of property to a Loan Party; Restricted Payments, not exceeding $6,000,000 during any fiscal year, provided that any such the total of all Restricted Payments made to Holdings under this clause since December 31, 2007 may not exceed the sum of (iA) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); $3,212,500 plus (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect 50% of the Holdco Initial Loan Facility Indebtedness; and Consolidated Net Income accrued during the period (Dtreated as one accounting period) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness from December 31, 2007 to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for end of the purpose of paying amounts owing under the Advisory Agreement, most recent fiscal quarter ending at least 45 days prior to the extent permitted under SECTION 6.07;
date of such Restricted Payment (iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations containedor, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if case such equity interests represent Consolidated Net Income shall be a portion of the exercise price deficit, minus 100% of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yeardeficit);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party willThe Parent Borrower will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock payment of Indebtedness created under (as long as no Change in Control would result therefromA) the Senior Unsecured Credit Agreement and payments of interest in-kind of (B) this Credit Agreement and the Loan Parties and their SubsidiariesDocuments;
(ii) (A) scheduled payments of principal and or interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of with respect to Indebtedness to the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Dateextent permitted by Section 7.01;
(iii) prepayment in whole or in part payment of secured Indebtedness that becomes due as a result of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, voluntary sale or transfer of the Holdco Initial Loan Facility property or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making assets securing such payment or prepaymentIndebtedness;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those respect of Capital Lease Obligations in the Senior Note Indenture on the First Amendment Effective Date;ordinary course of business; and
(v) partial redemption or prepayment by Holdings prepayments of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catchSeller Subordinated Note (by way of set-up” payment thereon;
(vioff or otherwise) or any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out Seller Subordinated Note Refinancing Indebtedness; provided that no such prepayments shall be permitted until all of the proceeds of obligations under the substantially concurrent issuance or sale of, Indebtedness of Senior Unsecured Credit Agreement have been paid in full and the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01commitments thereunder have been terminated.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary member of it to, declare or make, or agree to the Restricted Group shall pay or make, directly or indirectly, or declare, any Restricted Payment, except thatother than any Restricted Payment by a member of the Restricted Group to a Loan Party (or to another member of the Restricted Group and then to a Loan Party), provided, however, so long as no Default or Event of Default then exists or would result therefrom:
(i) Any Loan Party or any Subsidiary of a Loan Party the Parent may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the minimum amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required necessary to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings its status as the parent of a consolidated group that includes Holdings and its Subsidiaries REIT (including Unrestricted Subsidiariesthe 90% distribution requirement of Section 857(a) of the Internal Revenue Code); (B) , so long as (1) no Event such distribution is comprised of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments maximum amount possible in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making cash consideration to maintain such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereonREIT status;
(ii) The the Parent may pay de minimis cash settlement amounts to its shareholders in respect of fractional shares resulting from share splits; and (iii) Subsidiaries of the Parent that are not Loan Parties may declare and their Subsidiaries may make Restricted Payments for distributions to equity owners which are not Loan Parties concurrently with any distribution made to the purpose equity owners of paying such Subsidiary which are Loan Parties in amounts owing under the Advisory Agreement, proportionate to such non-Loan Party’s ownership in such Subsidiary and to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on required pursuant to the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions terms of the type described, and subject to the limitations contained, corresponding organizational agreements of such Subsidiary in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion effect as of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearEffective Date.
(b) No Loan Party will, nor will it permit any Subsidiary member of it to, make or agree to pay or the Restricted Group shall make any payment or other distribution voluntary prepayment (whether in cash, securities or other property) of on or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified IndebtednessIndebtedness prior to the scheduled maturity, exceptexcept for:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind subject to the terms of the Intercreditor Agreement, payment of Indebtedness created under the First Lien Documents and the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datepermitted by Section 9.14;
(iii) prepayment payment of mandatory prepayments as and when due in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds respect of any equity securities issued or capital contributions received Indebtedness permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 9.14;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable Refinancings of Indebtedness to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments extent permitted by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;Section 9.14; and
(v) partial redemption or prepayment by Holdings payment of the Holdco Initial Loan Facility Indebtedness intercompany indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made not prohibited by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01this Agreement.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary of it to, declare or make, ; or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party Holdings may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment its capital stock payable solely in additional shares of interest)its capital stock, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreementdeclare and pay dividends ratably with respect to their capital stock, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting pursuant to and in accordance with stock option plans or other repurchases of Capital Stock benefit plans for management or employees of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdingsits Subsidiaries, (Biv) Restricted Payments made pursuant Holdings may pay cash dividends with respect to this clause during any Fiscal Year shall be deemed made, first, shares of its preferred Equity Interests in respect of amounts carried over from the prior Fiscal Year pursuant to which cash dividends are payable or which require redemptions or repurchases in cash; provided that no such payments shall be made under this clause (Aiv) above and, second, in respect upon the occurrence and during the continuance of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no an Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that pursuant to clauses (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year), (bh) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect or (i) of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearArticle VII.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary of it 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 Specified Indebtedness of (other than the type described in clause (a)(iObligations), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 cancelation, defeasance or termination of any such Specified Indebtedness, except:
(i) scheduled or mandatory payments of the principal of or premium or interest on Indebtedness, other than payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind respect of the Loan Parties and their SubsidiariesPermitted Subordinated Debt or other Indebtedness subordinated to the Obligations that shall be prohibited by the subordination provisions thereof;
(ii) (A) scheduled payments refinancings of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of Indebtedness to the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Dateextent permitted by Section 6.01;
(iii) prepayment in whole or in part payment of secured Indebtedness that becomes due as a result of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, voluntary sale or transfer of the Holdco Initial Loan Facility property or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making assets securing such payment or prepayment;Indebtedness; and
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as payments in effect on the Closing Date respect of Indebtedness owed to Holdings or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Subsidiary.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Kansas City Southern)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or 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) each of 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 ratably with respect to their Equity Interests, and (iii) so long as no Event of Default exists, the Borrowers may make Restricted Payments, not exceeding $200,000 during any fiscal year of the Company, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrowers and their Subsidiaries.
(b) Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted under Section 6.01, other than payments in respect of the Subordinated Indebtedness (Aother than the FFC Subordinated Debt and the Roundball Subordinated Debt) prohibited by the subordination provisions thereof;
(iii) with respect to the FFC Subordinated Debt, commencing January 1, 2018, payments of regularly scheduled quarterly payments of principal and interest as and when due and (B) as so long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentFFC Subordinated Payment Conditions are satisfied;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable with respect to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing DateRoundball Subordinated Debt, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreementcommencing January 1, Holdco Note Indenture or supplemental indenture2018, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes payments of regularly scheduled payments of interest so long as the terms thereof regarding mandatory prepayments Roundball Subordinated Payment Conditions are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;satisfied
(v) partial redemption or prepayment by Holdings refinancings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;permitted by Section 6.01; and
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payment of any secured Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out that becomes due as a result of the proceeds voluntary sale or transfer of the substantially concurrent issuance property or assets securing such Indebtedness to the extent such sale of, Indebtedness or transfer is permitted by the terms of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.05.
Appears in 1 contract
Samples: Credit Agreement (Hickok Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
that (i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions with respect to its capital stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits capital stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings their capital stock and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is may make Restricted Payments, not prohibited under exceeding $200,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for directors, management or employees of the Senior Initial Loan Facility Borrower and the Subsidiaries, including the redemption or purchase of capital stock of the ABL Facility from making such payments to HoldingsBorrower held by former directors, to make payments in connection with management or employees of the repurchase of Capital Stock of Holdings Borrower or any Subsidiary following termination of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearemployment.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments : payment of interest in-kind of Indebtedness created under the Loan Parties Documents; payment of regularly scheduled interest and their Subsidiaries;
(ii) (A) scheduled principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds respect of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required Indebtedness permitted under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings Documents; refinancings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” permitted by Section 6.01; payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance of secured Indebtedness that becomes due as a result of the voluntary sale or other acquisition transfer of the property or retirement assets securing such Indebtedness; and payments in respect of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Permitted Receivables Facility.
Appears in 1 contract
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary member of it to, declare or make, or agree to the Restricted Group shall pay or make, directly or indirectly, or declare, any Restricted Payment, except thatother than any Restricted Payment by a member of the Restricted Group to a Loan Party (or to another member of the Restricted Group and then to a Loan Party), provided, however, so long as no Default or Event of Default then exists or would result therefrom:
(i) Any Loan Party or any Subsidiary of a Loan Party the Parent may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the minimum amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required necessary to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings its status as the parent of a consolidated group that includes Holdings and its Subsidiaries REIT (including Unrestricted Subsidiariesthe 90% distribution requirement of Section 857(a) of the Internal Revenue Code); (B) , so long as (1) no Event such distribution is comprised of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments maximum amount possible in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making cash consideration to maintain such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereonREIT status;
(ii) The Loan Parties and their Subsidiaries the Parent may make Restricted Payments for the purpose pay de minimis cash settlement amounts to its shareholders in respect of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;fractional shares resulting from share splits; and
(iii) The Subsidiaries of the Parent that are not Loan Parties may declare and their Subsidiaries may make Restricted Payments on the Closing Date distributions to consummate the VH Acquisition;
(iv) The equity owners which are not Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject concurrently with any distribution made to the limitations contained, in the definition thereof;
(v) The equity owners of such Subsidiary which are Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over proportionate to such prior Fiscal Year);
(vii) Holdings may make payments of principal non-Loan Party’s ownership in such Subsidiary and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments required pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount terms of Restricted Payments made during the corresponding organizational agreements of such Fiscal Year, such excess capacity may be carried over to Subsidiary in effect as of the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearEffective Date.
(b) No Loan Party will, nor will it permit any Subsidiary member of it to, make or agree to pay or the Restricted Group shall make any payment or other distribution voluntary prepayment (whether in cash, securities or other property) of on or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified IndebtednessIndebtedness prior to the scheduled maturity, exceptexcept for:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind subject to the terms of the Intercreditor Agreement, payment of Indebtedness created under the First Lien Documents and the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datepermitted by Section 9.14;
(iii) prepayment payment of mandatory prepayments as and when due in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds respect of any equity securities issued or capital contributions received Indebtedness permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 9.14;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable Refinancings of Indebtedness to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments extent permitted by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;Section 9.14; and
(v) partial redemption or prepayment by Holdings payment of the Holdco Initial Loan Facility Indebtedness intercompany indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made not prohibited by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01this Agreement.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Pennsylvania Real Estate Investment Trust)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party Subsidiaries may declare and pay cash dividends or make other distributions of property ratably with respect to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of businesstheir capital stock, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (zii) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to may make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest payment in respect of notes preferred Equity Interest issued by Holdings to stockholders in connection therewith), provided that under the permissions of Section 6.01(b) when such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearbecome due.
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Debt prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective DateIndebtedness;
(v) partial redemption or prepayment by Holdings Subsidiaries may make payment in respect of preferred Equity Interest issued under the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;permissions of Section 6.01(b) when such payments become due; and
(vi) prepayment in full of the Indebtedness evidenced by the Senior Notes and the redemption or repurchase (and cancellation) in full of the Indebtedness evidenced by the May & Speh, Notes.
(c) Neither the Borrxxxx nor any repaymentSubsidiary shall enter into or be party to, purchaseor make any payment under, redemption, repurchase, defeasance or other acquisition or retirement any Synthetic Purchase Agreement unless (i) in the case of any Indebtedness constituting Senior Initial Loan Facility Indebtedness Synthetic Purchase Agreement related to any Equity Interest, (including, without limitation, Senior Initial Loans A) the payments required to be made thereunder are limited to the $1,000,000 and any Senior Notes(B) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness obligations of the Borrower incurred and the Subsidiaries thereunder are subordinated to the Indebtedness and other obligations arising hereunder and under the other Loan Documents on terms satisfactory to the Required Lenders and (ii) in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement the case of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness Synthetic Purchase Agreement related to any subordinated Indebtedness, (including, without limitation, Holdco Initial Loans A) the payments required to be made thereunder are limited to the amount permitted under Section 6.08(b) of this Agreement and any Holdco Notes(B) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness obligations of the Borrower incurred in compliance with Section 6.01and the Subsidiaries thereunder are subordinated to the Indebtedness and other obligations arising hereunder and under the other Loan Documents to at least the same extent as the subordinated Indebtedness to which such Synthetic Purchase Agreement relates. The Borrower shall promptly deliver to the Agent a copy of any Synthetic Purchase Agreement to which it becomes party.
Appears in 1 contract
Samples: Credit Agreement (Acxiom Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
that (i) Any Loan Party any Subsidiary may pay dividends to the Borrower or any other Subsidiary of (other than a Loan Party Foreign Subsidiary) at such times and in such amounts during any fiscal year, as shall be necessary to permit the Borrower or any other Subsidiary (other than a Foreign Subsidiary) to discharge its permitted liabilities, (ii) any Subsidiary may declare and pay cash dividends or make other distributions of property to a Loan Party; provided Foreign Subsidiary at such times and in such amounts so that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the aggregate amount of the dividends paid to all Foreign Subsidiaries does not exceed $250,000 during any indemnification claims made by any director or officer of Holdingsfiscal year, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for in the purpose form of paying amounts owing under the Advisory Agreement, dividends to the extent permitted under SECTION 6.07;
payable in, or exchanges or conversions for or into, shares of common stock of the Borrower or options or warrants to purchase common stock of the Borrower, and (iiiiv) The Loan Parties and their Subsidiaries the Borrower may make Restricted Payments on required by the Closing Date Confirmation Order to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions shareholders of the type described, and subject to the limitations contained, "Existing Common Stock" (as defined in the definition thereof;
(vPlan of Reorganization) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant respect to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in 20% of any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward proceeds or other amounts relating to the next succeeding Fiscal Year Hickx Xxxe Lawsuit to which the Borrower or any of Holdingsits Subsidiaries are entitled, and (B) Restricted Payments made pursuant to this clause during 40% of any Fiscal Year shall be deemed made, first, in respect of amounts carried over from Net Proceeds received by the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings Borrower or any Subsidiary of itits Subsidiaries with respect any sale, provided that such payments, in transfer or other disposition of the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearTunisia Assets.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other propertyProperty) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified Indebtednessnot permitted under Section 6.1, or any 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 such Specified IndebtednessIndebtedness not permitted under Section 6.1, except
(i) except payment of regularly scheduled interest and principal payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind of the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due in respect of the Standby Debt and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility IndebtednessStandby Debt, Additional Borrower Unsecured Senior Notes provided that such payments and prepayments are made in accordance with the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year terms and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part conditions of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments Intercreditor Agreement and are not otherwise prohibited by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as subordination provisions of such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Standby Debt.
Appears in 1 contract
Samples: Credit Agreement (Coho Energy Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Restricted Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party Wholly Owned Subsidiaries may declare and pay cash dividends or make other distributions of property with respect to a Loan Party; provided their capital stock and Restricted Subsidiaries that any such Restricted Payments made are not Wholly Owned Subsidiaries may declare and pay dividends ratably with respect to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingstheir capital stock, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2ii) the Borrower is may make Restricted Payments, not prohibited under exceeding $2,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Senior Initial Loan Facility or the ABL Facility from making such payments to HoldingsBorrower and its Restricted Subsidiaries, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2iii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdingsmay, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations containedSection 6.02, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase dividends consisting solely of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearits capital stock.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified IndebtednessSenior Subordinated Note, 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 cancelation or termination of any such Specified IndebtednessSenior Subordinated Note, except
(i) except payment of regularly scheduled interest payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind of the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Subordinated Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Company will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
that (i) Any Loan Party or any Subsidiary of a Loan Party the Company may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest)its Equity Interests payable solely in additional Equity Interests otherwise permitted hereunder, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, declare and pay dividends ratably with respect to the extent permitted under SECTION 6.07;
their Equity Interests and (iii) The Loan Parties and their Subsidiaries the Company may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, amount during the term of this Agreement not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yeargreater than US$25,000,000.
(b) No Loan Party willThe Company will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 cancelation, termination or termination defeasance of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments respect of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility any Indebtedness, Additional Borrower Unsecured Senior Notes and other than payments in respect of any Indebtedness subordinated to the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in Obligations or any of them to the aggregate in any Fiscal Year and not exceeding $25,000,000 in extent prohibited by the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility Indebtedness with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentPermitted Refinancing Indebtedness;
(iv) prepayments of Seller Notes and repurchases or redemptions of Preferred Stock issued pursuant to clause (Aiv) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;of Section 6.01(a); and
(v) partial redemption or prepayment by Holdings any payment of secured Indebtedness that becomes due as a result of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance voluntary sale or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out transfer of the proceeds of the substantially concurrent issuance property or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01assets securing such Indebtedness.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any each of the Loan Party or any Subsidiary of a Loan Party Parties may declare and pay cash 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 make other distributions in shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries of the Borrower may declare and pay dividends ratably with respect to pay franchise taxes and other feestheir Equity Interests, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (Biii) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over result immediately after giving effect to such prior Fiscal Year);
(vii) Holdings Restricted Payment, FHC may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Loan Parties in an amount not to exceed $2,500,000 during the term of this clause (vi) for any Fiscal Year exceeds Agreement, plus the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, cash settlements in respect of amounts carried over from stock-based awards granted to any Person who replaces the prior Fiscal Year pursuant to clause (a) above andinterim chief executive officer of the Loan Parties, second, in respect of amounts permitted for such Fiscal Year as provided above and (civ) subject to the amount satisfaction of excess capacity that the Payment Conditions, FHC may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearmake other Restricted Payments.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, securities securities, or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified Indebtedness, or any payment or other distribution (whether in cash, securities securities, or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancellation, or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due in respect of any Indebtedness permitted under Section 6.01, other than payments in respect of (A) the FILO Debt and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) payment of secured Indebtedness (Aother than the FILO Debt) mandatory prepayments 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 Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;of Section 6.05; and
(v) partial redemption (x) so long as no Event of Default under Section 7(a), (b)(i), (h) or prepayment by Holdings (i) has occurred and is continuing both before and after giving effect thereto, payments of interest in respect of the Holdco Initial Loan Facility Indebtedness FILO Debt and (y) payments in respect of principal of the FILO Debt subject to the extent necessary to make an AHYDO “catch-up” payment thereon;satisfaction of the FILO Payment Conditions both before and after giving effect thereto; and
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out v)subject to the satisfaction of the proceeds Payment Conditions, payment of other Indebtedness not otherwise permitted under this Section 6.08(b) (other than payments in respect of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01FILO Debt).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
that (i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions with respect to its capital stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits capital stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings their capital stock and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is may make Restricted Payments, not prohibited under exceeding $200,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for directors, management or employees of the Senior Initial Loan Facility Borrower and the Subsidiaries, including the redemption or purchase of capital stock of the ABL Facility from making such payments to HoldingsBorrower held by former directors, to make payments in connection with management or employees of the repurchase of Capital Stock of Holdings Borrower or any Subsidiary following termination of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearemployment.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments or the Bank Loan Documentation;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists in respect of any Indebtedness permitted under the Loan Documents or would arise therefrom, prepayments in whole or in part of the Senior Initial Bank Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
Documentation; (iii) prepayment in whole or in part refinancings of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any such Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made is permitted by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.
Appears in 1 contract
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrowers may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates its common stock payable solely in additional shares of its common stock, and, with respect to non-payment its preferred stock, payable solely in additional shares of interest), SECTION 7.01(h) such preferred stock or SECTION 7.01(i) has occurred in shares of its common stock and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, declare and pay dividends ratably with respect to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearEquity Interests.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness permitted under Section 6.01, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments 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 Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;of Section 6.05; and
(v) partial redemption or prepayment by Holdings Borrower may repurchase shares of the Holdco Initial Loan Facility Indebtedness its common stock for an aggregate consideration of not more than $10,000,000 per fiscal year for so long as Borrower has Liquid Assets of at least $15,000,000 after giving effect to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, such repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.
Appears in 1 contract
Samples: Credit Agreement (MeetMe, Inc.)
Restricted Payments; Certain Payments of Indebtedness. of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
(a) No Loan Party will, nor or will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayment other than Permitted Dividends and Permitted Dispositions, except that
(i) Any Loan Party or any Subsidiary without the prior consent of a Loan Party may declare the Administrative Agent and pay cash dividends or make other distributions of property to a Loan Partythe Required Lenders; provided that any such Restricted Payments made to Holdings under this clause (i) the Borrower shall be used only (A)(x) permitted to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) up to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect $2,000,000 for general corporate purposes on behalf of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearEndeavor.
(b) No Loan Party will, nor or will it permit any Subsidiary of it to, 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) mandatory payments in Capital Stock (as long as no Change in Control would result therefrom) and payments prepayments of interest in-kind and principal as and when due in respect of the Loan Parties and their Subsidiariesany Permitted Indebtedness;
(ii) (A) scheduled payments on account of principal and interest Indebtedness outstanding as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes Closing Date and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Dateas set forth on Schedule 6.01;
(iii) prepayment payments on account of Subordinated Indebtedness to the extent permitted under any subordination agreement or 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 whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;an amount not to exceed $5,000,000; and
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings refinancings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;permitted under this Agreement.”
(viii) Section 6.08 (Transactions with Affiliates) of the Credit Agreement is hereby amended and restated in its entirety to read as follows: “No Loan Party will, or will permit any Subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) (i) transactions in the ordinary course of business that are at prices and on terms and conditions not less favorable to such Loan Party than could be obtained on an arm’s-length basis from unrelated third parties and (ii) contributions of capital by an Affiliate to a Loan Party, (b) transactions between or among the Loan Parties not involving any other Affiliate, (c) sales of inventory by the Loan Parties to any Subsidiaries at the cost of such property plus an agreed upon markup and extensions of credit in connection with such transfers, (d) any repaymentLoan Party’s transfer of inventory to The American Apparel Group of Canada, purchasea company which owns stores in Canada and that is AMENDMENT NO. 4 AND WAIVER TO CREDIT AGREEMENT OF AMERICAN APPAREL, redemption, repurchase, defeasance INC. owned by Endeavor (or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out prior to the consummation of the proceeds SPAC Transactions, family members of Xxx Xxxxxxx), for a sales price not less than the Loan Party’s cost of such property; provided that such transactions provided for under this clause (d) are in the ordinary course of business and consistent with past practice and that such transactions do not include inventory having a selling price in excess of $15,000,000 per Fiscal Year, (e) Permitted Dividends, (f) Permitted Investments (provided that such Permitted Investments described in clauses (a) through (e) and in clause (g) of the substantially concurrent issuance or sale ofdefinition of Permitted Investments shall be made on an arm’s-length basis), Indebtedness (g) Permitted Dispositions, (h) transactions in respect of the Borrower incurred 00xx Xxxxxx Facility, (i) the transfers and transactions expressly set forth in compliance with Section 6.01;
the Lim Option Agreement or the Merger Agreement and (viij) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payments made on behalf of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Endeavor permitted pursuant to Section 6.016.07(a).”
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit ALOSKI or any Subsidiary of it their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayment or incur any obligation, (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest)its Equity Interests payable solely in additional Equity Interests in Borrower, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties Borrower may declare and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreementpay dividends to any Guarantor (including, to the extent permitted under SECTION 6.07;
without limitation, Alon Interests), and (iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties declare and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject pay dividends to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings Borrower or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearGuarantor.
(b) No Loan Party willThe Borrower will not, nor and will it not permit ALOSKI or any Subsidiary of it their respective Subsidiaries to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) scheduled payments refinancings of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of Indebtedness to the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Dateextent permitted by Section 8.01;
(iii) prepayment in whole or in part payment of secured Indebtedness that becomes due as a result of the Senior Initial Loan Facilityvoluntary sale or transfer of the property or assets securing such Indebtedness, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility provided that such sale or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received transfer is otherwise permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentthis Agreement;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date payment or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indentureprepayment of Capital Lease Obligations, so long as such Senior Initial Loan Agreement, Senior Note Indenture no Default is existing or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;would result therefrom; and
(v) partial redemption or prepayment by Holdings payment when due of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01obligations under Hedging Agreements.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except thator incur any obligation (contingent or otherwise) to do so, except:
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) its Equity Interests payable solely in additional common Equity Interests in the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereonBorrower;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, declare and pay dividends ratably with respect to the extent permitted under SECTION 6.07their capital stock;
(iii) The Loan Parties the Borrower may pay the premium in respect of, and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisitionotherwise perform its obligations under, any Permitted Bond Hedge Transaction;
(iv) The Loan Parties and their Subsidiaries the Borrower may make Restricted Payments consisting payments or deliveries in shares of Permitted Dispositions common stock and cash in lieu of fractional shares required by the type describedterms of, and subject to otherwise perform its obligations under, the limitations containedConvertible Notes Indenture (including, without limitation, making payments of interest and principal thereon and/or making deliveries (other than in the definition cash) due upon conversion thereof;); and
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or the Transactions (but not, for the avoidance, any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearcash);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility any Indebtedness, Additional Borrower Unsecured Senior Notes and other than payments in respect of subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable subject to the obligors thereunder than Intercreditor Agreements, payment of secured Indebtedness out of the Senior Initial Loan Agreement in effect on proceeds of any sale or transfer of the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date property or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as assets securing such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective DateIndebtedness;
(v) partial redemption payment of or prepayment in respect of (A) Indebtedness created under the ABL Loan Documents, (B) Indebtedness or obligations secured by Holdings of the Holdco Initial ABL Security Documents, (C) Indebtedness created under the First Lien Term Loan Facility Documents, and (D) Indebtedness to or obligations secured by the extent necessary to make an AHYDO “catch-up” payment thereonFirst Lien Term Loan Security Documents;
(vi) any repayment[reserved];
(vii) [reserved]; and
(viii) the Borrower may make payments or deliveries in shares of common stock and cash in lieu of fractional shares required by the terms of, purchaseand otherwise perform its obligations under, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness the Convertible Notes Indenture (including, without limitation, Senior Initial Loans making payments of interest and principal thereon and/or making deliveries (other than in cash) due upon conversion thereof).
(c) The Borrower will not, nor will it permit any Senior Notes) Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless, in the case of any Synthetic Purchase Agreement related to any Equity Interests of the Borrower, the payments required to be made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with are limited to amounts permitted to be paid under Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.08(a).
Appears in 1 contract
Samples: Second Lien Term Loan Credit Agreement (Horizon Global Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Company may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only per share with respect to clause (i) thereof as it relates to non-payment its common Equity Interests payable solely in additional shares of interest)its common Equity Interests, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties the Company may declare and their Subsidiaries may make Restricted Payments pay dividends with respect to its Equity Interests in an aggregate amount per share in any fiscal year of the Company not to exceed 100% of the “adjusted earnings” per share or words of similar import (in each case, as such term is reported in the Company’s financial statements from time to time) for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
such fiscal year and (iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date declare and pay dividends ratably with respect to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearEquity Interests.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified subordinated 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 such Specified subordinated Indebtedness, except:
(i) payment of regularly scheduled interest and principal payments as and when due in Capital Stock (as long as no Change in Control would result therefrom) and respect of any such Indebtedness permitted under Section 6.01, other than payments of interest in-kind of prohibited by the Loan Parties and their Subsidiariessubordination provisions thereof; and;
(ii) (A) scheduled payments refinancings of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made permitted by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.
Appears in 1 contract
Samples: Credit Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions with respect to its common stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other feestheir Equity Interests, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory AgreementPayments, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed exceeding $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause 1,500,000 during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (pursuant to and provided further thatin accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (viiiv) if there exists no Default or Event of this SECTION 6.06Default, one hundred percent (100%) and to do so will not cause a Default or Event of such unutilized portion may be carried forward to the next succeeding Fiscal Year of HoldingsDefault, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred Borrower is in pro forma compliance with the Financial Covenants set forth in Section 6.12 before and be continuingafter giving effect thereto and after giving effect to any Indebtedness incurred in connection therewith, the Loan Parties Borrower may declare and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount holders of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearits Equity Interests.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due in respect of any Indebtedness permitted under Section 6.01 and (B) as prepayment of Indebtedness permitted under Section 6.01 so long as Borrower is in pro forma compliance with the financial covenants set forth in Section 6.12 both before and after giving effect to such prepayment, provided that no Specified Default then exists or would arise therefrom, prepayments payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness shall be made to the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in extent prohibited by the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Dateexpress subordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.01; and
(iv) (A) mandatory prepayments by the Borrower payment of secured Indebtedness that becomes due as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings a result of the Holdco Initial Loan Facility voluntary sale or transfer of the property or assets securing such Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance such sale or other acquisition or retirement transfer is permitted by the terms of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.05.
Appears in 1 contract
Samples: Credit Agreement (JOINT Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare Declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except thator incur any obligation (contingent or otherwise) to do so, except:
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates its common stock payable solely in additional shares of its common stock, and, with respect to non-payment its preferred stock, payable solely in additional shares of interest), SECTION 7.01(h) such preferred stock or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect shares of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;its common stock,
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, declare and pay dividends ratably with respect to the extent permitted under SECTION 6.07;their Equity Interests,
(iii) The Loan Parties and their Subsidiaries the Borrower may make Restricted Payments on Payments, during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Closing Date to consummate the VH Acquisition;Borrower and its Subsidiaries and
(iv) The Loan Parties and their Subsidiaries provided no Default has occurred that has not been waived in writing by the Lender, the Borrower may make Restricted Payments consisting of Permitted Dispositions purchase stock of the type describedBorrower and pay cash dividends; provided, however, such purchases and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) cash dividends shall not exceed (A) an aggregate amount of $5,000,000 in any Fiscal Year 10,000,000 from and after the Closing Date, and (B) an aggregate of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 7.1; and
(iv) (A) mandatory prepayments by the Borrower payment of secured Indebtedness that becomes due as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings a result of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance voluntary sale or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out transfer of the proceeds of the substantially concurrent issuance property or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01assets securing such Indebtedness.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Parent Borrower will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Subsidiaries may declare and pay cash dividends or ratably with respect to their Equity Interests, (ii) the Parent Borrower may declare and pay dividends with respect to its common stock payable solely in additional shares of its common stock, (iii) the Parent Borrower may make other distributions of property to a Loan Party; Restricted Payments, not exceeding $6,000,000 during any fiscal year, provided that any such the total of all Restricted Payments made since July 1, 2005 may not exceed 50% of the Consolidated Net Income accrued during the period (treated as one accounting period) from July 1, 2005 to Holdings under this clause the end of the most recent fiscal quarter ending at least 45 days prior to the date of such Restricted Payment (i) or, in case such Consolidated Net Income shall be used only (A)(xa deficit, minus 100% of such deficit) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of at any time on or after the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuingEffective Date, the Loan Parties Parent Borrower may declare and their Subsidiaries may in each Fiscal Year make Restricted Payments pay dividends in an aggregate amount, without duplication, amount not exceeding to exceed the amount set forth below for Cumulative Net Income Amount at the time of such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearpayment.
(b) No Loan Party willThe Parent Borrower will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 cancelation or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) scheduled payments of principal and or interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of with respect to Indebtedness to the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;extent permitted by Section 6.01; and
(iii) prepayment in whole or in part payment of secured Indebtedness that becomes due as a result of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility voluntary sale or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings transfer of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance property or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01assets securing such Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Mac-Gray Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Company will not, nor will it permit any Subsidiary of it to, declare or make, or agree to make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that the Company or any Subsidiary may:
(i) declare and make dividend payments or other distributions payable solely in its common stock or in options, warrants, or other rights to purchase common stock;
(ii) 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 for consideration not exceeding $100,000 in the aggregate in any calendar year;
(iii) in the case of a Subsidiary, declare and pay dividends and other distributions ratably to the holders of its Equity Interests; and
(iv) the Company may declare and make, and may agree to declare and make, the Permitted Share Repurchase.
(b) The Company will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance, retirement, acquisition, cancellation cancelation or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind payment of the Loan Parties and their SubsidiariesObligations;
(ii) (A) payment of scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility any Indebtedness, Additional Borrower Unsecured Senior Notes and other than payments in respect of subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, extent the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received Indebtedness resulting therefrom is permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;Indebtedness; and
(v) partial redemption or prepayment by Holdings payments which correspond to scheduled payments of principal on the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;Industrial Revenue Bonds; and
(vi) unless a Default or an Event of Default shall have occurred and is continuing, (A) payment by the Company, in connection with any repaymentconversion of Convertible Senior Debentures, purchaseof a settlement amount, redemption, repurchase, defeasance whether in cash or other acquisition shares of common stock of the Company or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange fora combination thereof, or out of a make-whole premium in shares of common stock of the proceeds Company, and (B) repurchase by the Company of Convertible Senior Debentures upon the exercise by the holder thereof of a "designated event put" right under the Convertible Senior Debentures Indenture, in each case, in accordance with the Convertible Senior Debentures Indenture.
(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 the substantially concurrent issuance Company or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01a Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Labone Inc/)
Restricted Payments; Certain Payments of Indebtedness. (a) No The Loan Party willParties will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
as long as no Default or Event of Default exists or would arise therefrom (i) Any the Loan Party Parties may declare and pay dividends with respect to their capital stock payable solely in additional shares of their common stock, (ii) the Subsidiaries of the Lead Borrower may declare and pay dividends ratably with respect to their capital stock, (iii) the Lead Borrower may effect the initial Stock Repurchase on the Closing Date, and (iv) the Lead Borrower may repurchase its capital stock (including any Stock Purchase occurring after the Closing Date) or any Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in if the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that Payment Conditions are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearthen satisfied.
(b) No The Loan Party willParties will not, nor and will it not permit any Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payment of regularly scheduled interest and principal payments as and when due in Capital Stock (as long as no Change in Control would result therefrom) and payments respect of interest in-kind of the Loan Parties and their Subsidiaries;any permitted Indebtedness; and
(ii) (A) scheduled payments of principal and interest under any L/C Facility, as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;due; and
(iii) prepayment refinancings of Indebtedness described in whole clause (i) or in part of the Senior Initial Loan Facility(ii), Additional Borrower Unsecured Senior Notesabove, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made permitted by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.
Appears in 1 contract
Samples: Credit Agreement (Petsmart Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions with respect to its capital stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other feestheir capital stock, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal may declare and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only pay regular quarterly dividends with respect to clause the Convertible Preferred Stock (ipayable solely in shares of Convertible Preferred Stock or common stock of the Borrower) thereof as it relates from time to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom time and (2iv) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, acquire Equity Interests in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings Borrower or any Subsidiary of it options with respect thereto in connection with exchange solely for Equity Interests in the exercise of stock Borrower or options or warrants if such equity interests represent a portion of for Equity Interests in the exercise price of such option or warrants, provided that Restricted Payments made Borrower pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year stock option and other employee benefits plans of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility any Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part refinancings of Indebtedness to the extent permitted by Section 6.01; and
(iv) payment of secured Indebtedness that becomes due as a result of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, voluntary sale or transfer of the Holdco Initial Loan Facility property or the Term Loan Financing Facility assets securing such Indebtedness; and
(v) prepayments of Capital Lease Obligations with the proceeds of any equity securities issued respect to real estate interests in Stores or capital contributions received by any Loan Party or any Subsidiary with respect to equipment for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by enabling the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture a Subsidiary to acquire such real estate interests or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01equipment.
Appears in 1 contract
Samples: Credit Agreement (Blockbuster Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrowers will not, nor and will it not permit any Subsidiary other member of it the Borrower Affiliated Group to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
as long as no Default or Event of Default exists or would arise therefrom, and after giving effect thereto, the Borrowers are Solvent (i) Any Loan Party or any Subsidiary Borrower may declare and pay dividends with respect to its capital stock payable solely in additional shares of a Loan Party their common stock, (ii) the Subsidiaries of the Lead Borrower may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest)their capital stock, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on only if the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuingPayment Conditions are then satisfied, the Loan Parties Lead Borrower may repurchase its capital stock and/or declare and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) pay cash dividends to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearits shareholders.
(b) No Loan Party willThe Borrowers will not at any time, nor and will it not permit any Subsidiary other member of it to, the Borrower Affiliated Group to make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(ic) payment of regularly scheduled interest and principal payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind of the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement respect of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with permitted under Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.036.1; and
(viiid) any repaymentrefinancings of Indebtedness described in clause (i), purchaseabove, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made to the extent permitted by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.1.
Appears in 1 contract
Samples: Credit Agreement (Gamestop Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash 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 make other distributions in shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other feestheir Equity Interests, taxes and expenses required to maintain the corporate existence of Holdings (iii) Permitted Share Redemptions, and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (Biv) so long as (1A) no Event of Default has occurred and is continuing in existence before or would arise therefrom immediately after giving effect thereto and (2B) the Borrower demonstrates to the reasonable satisfaction of the Administrative Agent that the Fixed Charge Ratio after giving effect thereto is not prohibited under 0.25x greater than the Senior Initial Loan Facility or Fixed Charge Coverage Ratio required pursuant to Section 6.12(a) for the ABL Facility from making such payments to Holdingsnext fiscal quarter, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearPayments.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness permitted under Section 6.01, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;subordination provisions thereof; and
(iii) prepayment in whole or in part payment of secured Indebtedness that becomes due as a result of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility voluntary sale or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings transfer of the Holdco Initial Loan Facility property or assets securing such Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance such sale or other acquisition or retirement transfer is permitted by the terms of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.05.
Appears in 1 contract
Samples: Credit Agreement (Exactech Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Restricted Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party provided that no Default has occurred and is continuing, the Borrower may declare and pay cash dividends or make to the extent the Borrower may do so without violating Section 6.13; (ii) the Borrower may declare and pay dividends with respect to its capital stock payable solely in additional shares of its common stock, (iii) Restricted Subsidiaries may declare and pay dividends and other distributions ratably with respect to their capital stock or other Equity Interests, (iv) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of property the Borrower and its Restricted Subsidiaries, and (v) the Borrower may from time to a Loan Party; time repurchase shares of its capital stock in an aggregate amount not to exceed $50,000,000 during the term of this Agreement, provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom at the time of such repurchase and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness after giving pro forma effect to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreementproposed repurchase or other transaction, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings ’s Leverage Ratio is less than or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant equal to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year2.00:1.00.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Restricted Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest other customary fees and expenses as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of any Indebtedness permitted by the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing DateDocuments;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.1; and
(iv) (A) mandatory prepayments by the Borrower payment of secured Indebtedness that becomes due as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings a result of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance voluntary sale or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out transfer of the proceeds of the substantially concurrent issuance property or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01assets securing such Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Stewart & Stevenson Services Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Company will not, nor will it permit any Subsidiary of it to, declare or make, or agree to make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that the Company or any Subsidiary may:
(i) declare and make dividend payments or other distributions payable solely in its common stock or in options, warrants, or other rights to purchase common stock;
(ii) 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 for consideration not exceeding $100,000 in the aggregate in any calendar year;
(iii) in the case of a Subsidiary, declare and pay dividends and other distributions ratably to the holders of its Equity Interests; and
(iv) make payments not to exceed $250,000 in the aggregate to holders of its Series B-1 Preferred Shares, Series C-1 Preferred Shares or Series C-2 Preferred Shares in lieu of the issuance of fractional shares of its capital stock.
(b) The Company will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance, retirement, acquisition, cancellation cancelation or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind payment of the Loan Parties and their SubsidiariesObligations;
(ii) (A) payment of scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility IndebtednessSubordinated Notes, Additional Borrower Unsecured Senior the Series B Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 (as defined in the aggregate in any Fiscal Year and not exceeding $25,000,000 in Securities Purchase Agreement) or other subordinated Indebtedness prohibited by the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, extent the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received Indebtedness resulting therefrom is permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;Indebtedness; and
(v) partial redemption payments which correspond to scheduled payments of principal on the Industrial Revenue Bonds.
(c) Neither the Company nor any Subsidiary shall enter into or prepayment by Holdings 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 the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance Company or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01a Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Labone Inc/)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor Borrowing Base Subsidiary will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
or incur any obligation (i) Any Loan Party contingent or any Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(xotherwise) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of businessdo so, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes except that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect each of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Borrowing Base Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplicationPayments, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided$1,000,000.00 during any fiscal year, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) and in accordance with stock option plans or other benefit plans for any Fiscal Year exceeds management or employees of the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearBorrowing Base subsidiaries.
(b) No Loan Party will, nor Borrowing Base Subsidiary will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.01; and
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness. Nothing contained in this Section or in this Agreement shall operate to prohibit or limit the REIT or the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (from issuing securities including, without limitation, Senior Initial Loans preferred stock and any Senior Notes) made by exchange forwarrants, or out of from redeeming such securities, including without limitation such actions which are consistent with and pursuant to the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01REIT’s stock redemption plan.
Appears in 1 contract
Samples: Credit Agreement (Macquarie CNL Global Income Trust, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions with respect to its capital stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other feestheir capital stock, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplicationPayments, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided$250,000 during any fiscal year, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) and in accordance with stock option plans or other benefit plans for any Fiscal Year exceeds management or employees or consultants of the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above Borrower and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearits Subsidiaries.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility any Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datepermitted hereunder;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.01; and
(iv) (A) mandatory prepayments by the Borrower payment of secured Indebtedness that becomes due as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings a result of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance voluntary sale or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out transfer of the proceeds of the substantially concurrent issuance property or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01assets securing such Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Topps Co Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayment or incur any obligation, (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest)its Equity Interests payable solely in additional Equity Interests in Borrower, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties Borrower may declare and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreementpay dividends to any Guarantor (including, to the extent permitted under SECTION 6.07;
without limitation, Alon Interests), and (iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties declare and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject pay dividends to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings Borrower or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearGuarantor.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) scheduled payments refinancings of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of Indebtedness to the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Dateextent permitted by Section 8.01;
(iii) prepayment in whole or in part payment of secured Indebtedness that becomes due as a result of the Senior Initial Loan Facilityvoluntary sale or transfer of the property or assets securing such Indebtedness, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility provided that such sale or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received transfer is otherwise permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentthis Agreement;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date payment or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indentureprepayment of Capital Lease Obligations, so long as such Senior Initial Loan Agreement, Senior Note Indenture no Default is existing or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;would result therefrom; and
(v) partial redemption or prepayment by Holdings payment when due of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01obligations under Hedging Agreements.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary each of a Loan Party Holdings and the Borrowers may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates its common stock payable solely in additional shares of its common stock, and, with respect to non-payment its preferred stock, payable solely in additional shares of interest)such preferred stock or in shares of its common stock, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreementdeclare and pay dividends ratably with respect to their Equity Interests, to the extent permitted under SECTION 6.07;
and (iii) The Loan Parties and their Subsidiaries the Borrowers may make other Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion satisfaction of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearPayment Condition.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and in respect of any Indebtedness permitted under Section 6.01 (B) as long as no Specified Default then exists or would arise therefrom, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes Subordinated Indebtedness prohibited by the subordination provisions thereof) and payments in respect of Subordinated Indebtedness permitted by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.01; and
(iv) (A) mandatory prepayments by the Borrower payment of secured Indebtedness that becomes due as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings a result of the Holdco Initial Loan Facility voluntary sale or transfer of the property or assets securing such Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance such sale or other acquisition or retirement transfer is permitted by the terms of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.05.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party each Borrower may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates its common stock payable solely in additional shares of its common stock, and, with respect to non-payment its preferred stock, payable solely in additional shares of interest)such preferred stock or in shares of its common stock, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties Subsidiaries may declare and pay dividends ratably with respect to their Subsidiaries Equity Interests, and (iii) the Borrowers may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplicationPayments, not exceeding the amount set forth below for such Fiscal Year: 2007 $ $1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; providedduring any fiscal year, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) and in accordance with stock option plans or other benefit plans for any Fiscal Year exceeds management or employees of the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above Borrowers and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yeartheir Subsidiaries.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;Indebtedness; and
(v) partial redemption payments in the nature of refunds or prepayment by Holdings returns of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Trade Deposits.
Appears in 1 contract
Samples: Credit Agreement (Metalico Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary each of a Loan Party the Borrowers may declare and pay cash 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 ratably with respect to their Equity Interests, (iii) the Borrowers may make other distributions of property to a Loan Party; provided that any such Restricted Payments made pursuant to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in accordance with stock option plans or other benefit plans for management or employees of the Borrowers and their Subsidiaries in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes business and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries the Borrowers may make other Restricted Payments consisting of Permitted Dispositions of the type described, in cash and securities subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion satisfaction of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearPayment Condition.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified Indebtednessfor Borrowed Money, 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 such Specified IndebtednessIndebtedness for Borrowed Money (each of the foregoing in this clause (b) a “Restricted Debt Payment”), except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and regularly scheduled principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility any Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datepermitted under Section 6.01;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments 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 Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;of Section 6.05; and
(v) partial redemption or prepayment by Holdings the Borrowers may make other Restricted Debt Payments subject to the satisfaction of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Payment Condition.
Appears in 1 contract
Samples: Credit Agreement (AtriCure, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willA. Borrower will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except thator incur any obligation (contingent or otherwise) to do so, except:
(i) Any Loan Party or any Subsidiary of a Loan Party Borrower may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment its capital stock payable solely in additional shares of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereonits common stock;
(ii) The Loan Parties and their Subsidiaries Borrower may make Restricted Payments not exceeding $3,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for the purpose management or employees of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;Borrower and its Subsidiaries; and
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date declare and pay dividends ratably with respect to consummate the VH Acquisition;their capital stock.
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type describedB. Borrower will not, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall will not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest other payment obligations as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments during any applicable cure period in whole or in part respect of the Senior Initial Loan Facility any Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentsubsection 6.1;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;Indebtedness; and
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of to be paid in connection with the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Restatement Transactions.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit None of the Borrower or any Subsidiary of it to, will 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 (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) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions of property with respect to a Loan Party; provided that any such its capital stock, partnership or membership interests or other similar Equity Interests, or make other Restricted Payments made in respect of its Equity Interests, in each case ratably to Holdings under this clause the holders of such Equity Interests;
(iii) shall be used only 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)(xA) to pay general (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 by Holdings in the ordinary course of business, to the extent such expenses are directly attributable to the ownership or operation of the amount of Borrower and its Subsidiaries plus any reasonable and customary indemnification claims made by directors or officers of Parent or any director Controlling Company attributable to the ownership or officer operations of HoldingsParent, 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) to pay franchise taxes and other feesParent or the applicable Controlling Company shall, taxes and expenses required to maintain immediately following the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as closing or consummation thereof, cause (1) no Event 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 Default has occurred and is continuing such contribution) or would arise therefrom and (2) the merger (to the extent permitted in Section 6.04) of the Person formed or acquired into the Borrower is 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 under by this Agreement;
(E) the Senior Initial Loan Facility 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 ABL Facility from making such payments to Holdingsaggregate during the term of the Agreement, to make payments in connection with fund the repurchase or redemption of Capital Stock capital stock of Holdings 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 Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewithImmediate Family Member thereof), ; provided that the Borrower may make such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only Restricted Payments with respect to clause (i) thereof as it relates any such director, officer or employee without regard to non-payment such restriction for consideration consisting of interest)the proceeds of key man life insurance held by Parent, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) any Controlling Company, the Borrower is 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 prohibited less than, or any right to the appreciation in value of such capital stock exceeding the fair market value of such capital stock;
(F) to make Restricted Payments expressly permitted to be made under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, 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 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 Holdco Initial Loan Facility IndebtednessSenior Notes (including downstreaming of such proceeds to XxxXx to enable XxxXx to pay such amounts); and and
(DI) to partially redeem pay (or prepay Holdco Initial Loan Facility Indebtedness 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 necessary to make an AHYDO “catch-up” such payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent would be permitted under SECTION 6.07such Section 6.09(b);
(iii) The Loan Parties and their Subsidiaries the Borrower may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting non-cash repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with its Equity Interests upon the exercise of stock options or warrants if such equity interests Equity Interests represent a portion of the exercise price of such option options or warrants, provided that Restricted Payments made pursuant taxes to this clause (v) shall not exceed $5,000,000 be paid in any Fiscal Year of the Borrowerconnection therewith;
(viiv) Holdings may make Restricted Payments constituting other repurchases cash payments in lieu of Capital Stock the issuance of Holdings or any Subsidiary of it, provided that such payments, fractional shares representing insignificant interests in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders Borrower or similar Equity Interests in connection with the repurchase exercise of shares of Capital Stock of Holdings warrants, options or other securities convertible into or exchangeable for capital stock in the Borrower, Parent or any Subsidiary of itControlling Person, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearapplicable; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (bv) Restricted Payments made pursuant by Borrower in an amount not to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from exceed the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.Permitted Distribution Amount;
(b) No Loan Party will, nor will it permit None of the Borrower or any Subsidiary of it to, will make or agree with the holder thereof to pay or make make, directly or indirectly, any cash payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified material Subordinated Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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, defeasance, cancellation or termination of any such Specified material Subordinated Indebtedness, exceptexcept for:
(i) payments regularly scheduled interest payments, fees, expenses and indemnification obligations as and when due in Capital Stock (as long as no Change in Control would result therefrom) and payments respect of interest in-kind of the Loan Parties and their Subsidiariesany such Subordinated Indebtedness;
(ii) (A) scheduled payments refinancings or exchanges of principal and interest as and when due and (B) as long as no Specified Default then exists any such Subordinated Indebtedness for like or would arise therefrom, prepayments in whole or in part junior debt with the proceeds of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility other Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datepermitted under Section 6.01;
(iii) prepayment in whole or in part conversions of any such Subordinated Indebtedness to Equity Interests of the Senior Initial Loan FacilityParent, Additional Borrower Unsecured Senior Notesany Controlling Person, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party Borrower or any Subsidiary for the purpose of making such payment or prepaymentother Subsidiary;
(iv) (A) mandatory prepayments by additional payments in respect of any such Subordinated Indebtedness in an aggregate amount not to exceed the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date Available Amount; provided that no Event of Default shall have occurred and be continuing or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Datewould result therefrom;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an any AHYDO “catch-upcatchup” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01payments.
Appears in 1 contract
Samples: Credit Agreement (PetroLogistics LP)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates its common stock payable solely in additional shares of its common stock, and, with respect to non-payment its preferred stock, payable solely in additional shares of interest)such preferred stock or in shares of its common stock, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, declare and pay dividends ratably with respect to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearEquity Interests.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness permitted under Section 6.01, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;Indebtedness; and
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness payments pursuant to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repaymentand in accordance with employment agreements, purchase, redemption, repurchase, defeasance stock option and/or other equity compensation plans or other acquisition benefit plans for management, employees, directors or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness independent consultants of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01its Subsidiaries.
Appears in 1 contract
Samples: Credit Agreement (Photomedex Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Parent nor Borrowers will, nor will it they permit any Restricted Subsidiary of it a Borrower to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except thatexcept:
(i) Any Loan Party each Borrower and each Restricted Subsidiary of a Borrower may make Restricted Payments to a Borrower or any Subsidiary of a Borrower that is a Loan Party (and, in the case of any such Restricted Subsidiary that is not a wholly-owned Restricted Subsidiary, to each other owner of Equity Interests of such Restricted Subsidiary ratably based on their relative ownership interests of the relevant class of Equity Interests);
(ii) to the extent constituting a Restricted Payment, any Borrower and any Restricted Subsidiary of a Borrower may declare consummate any transaction permitted by Section 7.03 and Section 7.04 (other than Section 7.04(j), (m), (n), (q) and (t));
(iii) to the extent constituting a Restricted Payment, the conversion of Convertible Notes into Equity Interests pursuant to the terms thereof;
(iv) payments to Parent to enable Parent to make repurchases, redemptions or reductions in number of shares issued (including, by utilization of the “net share” concept) by Parent of any Equity Interests in Parent, as applicable, made in connection with (I) the surrender of shares by employees to (x) facilitate the payment by such employees of the taxes associated with compensation received by such employees under Parent’s stock-based compensation plans and, (y) to satisfy the purchase price of nonqualified stock options and (II) the deduction by Parent, of a portion of restricted stock or performance shares previously (i.e. prior to the date of the deduction) granted to employees under Parent’s stock-based compensation plans to facilitate the payment by such employees of the taxes associated with the vesting of such restricted stock and performance shares, in an amount not to exceed (for both clauses (I) and (II)), together with all Restricted Payments made pursuant to Section 7.08(a)(xiv), $2,000,000 in the aggregate in any fiscal year; provided, in each case, that prior to and after giving effect to such repurchases, redemptions or reductions no Default or Event of Default exists or is continuing;
(v) Borrowers may make Restricted Payments in cash to Parent to the extent of the conditions set forth in clause (A), (B) or (C) below:
(A) with respect to any taxable year a Borrower is member (or treated as a disregarded entity of a member) of a consolidated, combined, or unitary income tax group (“Tax Group”) with Parent as the corporate parent of such Tax Group that is responsible under applicable law for the income or similar Taxes of Borrower and any Restricted Subsidiary of such Borrower, such Borrower may make cash distributions to Parent the proceeds of which shall be used by Parent to pay cash dividends the income or make other distributions similar Taxes of property to a Loan Partysuch Borrower and any Restricted Subsidiary of such Borrower and the Tax Group; provided that any such Restricted Payments made pursuant to Holdings under this clause subclause (iA) shall not exceed the amount of U.S. federal, state, and local income or similar Taxes such Borrowers would have paid for such taxable year and any prior taxable year had they solely filed a consolidated, unitary, or combined income tax return among themselves;
(B) the proceeds of which shall be used only (A)(x) by Parent to pay general (1) its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting, tax reporting and similar expenses payable to third parties), that are reasonable and customary and incurred by Holdings in the ordinary course of business, or the amount of (2) any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of Parent attributable to the ownership or operations of any director or officer Borrower and any Restricted Subsidiary of Holdingsa Borrower, and (y3) to pay franchise taxes and similar Taxes, and other fees, taxes fees and expenses required to maintain its organizational existence; and
(C) the corporate existence proceeds of Holdings and which shall be used by Parent to satisfy its obligations under the Convertible Notes, to the extent such payments are permitted under the Intercreditor Agreement;
(zvi) [reserved];
(vii) [reserved];
(viii) to pay taxes the extent constituting a Restricted Payment, payments of the Convertible Notes made pursuant to an exchange for or out of the proceeds of Debt constituting a Permitted Refinancing of the Convertible Notes permitted under Section 7.01(xxiii);
(ix) redemptions in whole or in 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 are due such new Equity Interests contain terms and provisions at least as advantageous to 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 Holdings as 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 parent exercise of a consolidated group that includes Holdings stock options and its Subsidiaries the vesting of restricted stock and restricted stock units;
(including Unrestricted Subsidiaries); xi) Parent may, and Borrowers may make Restricted Payments to Parent to enable Parent to (A) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof and (B) honor any conversion request by a holder of convertible Debt and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Debt in accordance with its terms, in both cases of (A) and (B), in an amount not to exceed $250,000 in the aggregate (or $350,000 in the aggregate so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and continuing);
(2xii) [reserved];
(xiii) any Restricted Payment made on the Effective Date required to consummate the Plan of Reorganization;
(xiv) payments made by Parent, any Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Restricted Subsidiary of it a Borrower (including payments of principal and interest to Parent to enable Parent to make such payments) in respect of notes issued withholding or similar taxes payable upon exercise of Equity Interests by Holdings to stockholders in connection therewith)any future, provided that such payments are otherwise permitted under this SECTION 6.06; present or former employee, director, officer, manager or consultant (Cor their respective controlled Affiliates or Permitted Transferees) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting any repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the Equity Interests deemed to occur upon exercise of stock options or warrants if such equity interests Equity Interests represent a portion of the exercise price of such option options or warrantswarrants or required withholding or similar taxes (including payments to Parent in respect of the foregoing), provided that in an amount not to exceed, together with all Restricted Payments made pursuant to this clause (v) shall not exceed Section 7.08(a)(iv), $5,000,000 2,000,000 in the aggregate in any Fiscal Year of the Borrowerfiscal year;
(vixv) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year)[reserved];
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party Neither Parent nor any Borrower will, nor will it they permit any Restricted Subsidiary of it a Borrower to, make or agree to pay pay, directly or make indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified IndebtednessJunior Financing, 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 such Specified IndebtednessDebt prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) payment of regularly scheduled interest and principal payments, payments of fees, expenses and indemnification obligations when due in respect of any Debt, other than payments in Capital Stock (as long as no Change in Control would result therefrom) and payments respect of interest in-kind of any Junior Financing prohibited by the Loan Parties and their Subsidiariessubordination provisions thereof;
(ii) (A) scheduled payments refinancings of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part Debt with proceeds of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing DatePermitted Refinancing Debt permitted to be incurred under Section 7.01;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds conversion of any equity securities issued Junior Financing to or capital contributions received by any Loan Party or any Subsidiary for the purpose payments with Equity Interests (other than Disqualified Equity Interests) of making such payment or prepaymentParent;
(iv) prepayments, redemptions, purchases, defeasances and other payments or distributions in respect of Junior Financings prior to their scheduled maturity in an aggregate amount not to exceed an amount at the time of making any such prepayment, redemption, purchase, defeasance or other payment or distributions, together with any other such prepayment, redemption, purchase, defeasance or other payment or distributions made utilizing this clause (A) mandatory prepayments by iv), not to exceed the portion, if any, of the amount of Restricted Debt Payments that such Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable elects to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, apply pursuant to this clause (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Dateiv);
(v) partial redemption or prepayment by Holdings of any Restricted Debt Payments made on the Holdco Initial Loan Facility Indebtedness Effective Date required to consummate the extent necessary to make an AHYDO “catch-up” payment thereonReorganization Plan;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01[reserved];
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness [reserved];
(including, without limitation, Holdco Initial Loans and any Holdco Notesviii) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03[reserved];
(ix) [reserved]; and
(viiix) payments as part of an applicable high yield discount obligation or AHYDO catch-up payment.
(c) Neither Parent nor any repaymentBorrower will, purchasenor will they permit any Restricted Subsidiary of a Borrower to, redemptionamend or modify any documentation governing any Junior Financing, repurchasein each case if the effect of such amendment or modification (when taken as a whole) is in violation of a Subordination Agreement.
(d) [reserved];
(e) No Loan Party shall, defeasance or shall permit any other Loan Party to, make any voluntary, optional payment or prepayment including any mandatory excess cash flow prepayment on account of, or optional redemption or acquisition or retirement for value of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale portion of, Indebtedness of any Debt (other than that arising under (i) the Borrower incurred Loan Documents in compliance accordance with Section 6.01the provisions thereof, (ii) the Term Loan Documents in accordance with the provisions thereof and the Intercreditor Agreement, and (iii) the Convertible Notes Documents in accordance with the provisions thereof and the Intercreditor Agreement).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Company will not, nor will it permit any Subsidiary of it the Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Company may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment its capital stock payable solely in additional shares of interest)its common stock, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties Subsidiaries may declare and pay dividends ratably with respect to their Subsidiaries capital stock, (iii) the Company may make Restricted Payments not exceeding $5,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the purpose of paying amounts owing under Company and its Subsidiaries and (iv) the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries Company may make Restricted Payments on not exceeding $50,000,000 pursuant to and in accordance with plans approved by the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting Board of Permitted Dispositions Directors of the type described, and subject Company to repurchase outstanding Equity Interests of the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings Company or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearSubsidiary.
(b) No Loan Party willThe Company will not, nor will it permit any Subsidiary of it the Subsidiaries 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 cancelation or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of the Loan Parties and their SubsidiariesIndebtedness created under this Agreement;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility any Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective DateIndebtedness;
(v) partial redemption payment of Indebtedness of any Person acquired by the Company or prepayment by Holdings any Subsidiary that exists on the date of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;such acquisition; provided that such Person becomes a Subsidiary as a result of such acquisition; and
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made mandatory payments by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01a Receivables Subsidiary on Third Party Securities.
Appears in 1 contract
Samples: Three Year Credit Agreement (Sungard Data Systems Inc)
Restricted Payments; Certain Payments of Indebtedness. From and after the Closing, so long as TPG Persons Beneficially Own, in the aggregate, at least 25% of the Original Number of Combined Shares, without the prior written approval of the Investor:
(a) No Loan Party willThe Company will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
that (i) Any Loan Party or any Subsidiary of a Loan Party the Company may declare and pay cash dividends or make other distributions with respect to its capital stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits capital stock, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2ii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings Company or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only may pay dividends or other distributions with respect to clause any shares of their capital stock or the Series A Preferred Stock in accordance with the Series A Certificate of Designations, (iiii) thereof as it relates Subsidiaries may declare and pay dividends ratably with respect to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom their capital stock and (2iv) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries Company may make Restricted Payments Payments, not exceeding $200,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for the purpose of paying amounts owing under the Advisory Agreementdirectors, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions management or employees of the type describedCompany and the Subsidiaries, and subject to including the limitations containedredemption or purchase of capital stock of the Company held by former directors, in management or employees of the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings Company or any Subsidiary following termination of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearemployment.
(b) No Loan Party willThe Company will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except
except (i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness permitted under the Loan Parties and their Subsidiaries;
Credit Agreement, (ii) (A) scheduled payments of principal pursuant to the Restructuring, and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part payment of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required Indebtedness permitted under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Indenture.
Appears in 1 contract
Samples: Restructuring Agreement (Memc Electronic Materials Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
that (i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions with respect to its capital stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits capital stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings their capital stock and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is may make Restricted Payments, not prohibited under exceeding $200,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for directors, management or employees of the Senior Initial Loan Facility Borrower and the Subsidiaries, including the redemption or purchase of capital stock of the ABL Facility from making such payments to HoldingsBorrower held by former directors, to make payments in connection with management or employees of the repurchase of Capital Stock of Holdings Borrower or any Subsidiary following termination of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearemployment.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of any Indebtedness permitted under the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing DateDocuments;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;Indebtedness; and
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payments in respect of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Permitted Receivables Facility.
Appears in 1 contract
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willExcept as permitted by Section 6.05, nor the Borrower will it not, and will not permit any Subsidiary of it to, declare or make, make or agree to pay or make, directly or indirectly, or be or become liable in respect of any obligation to make, any Restricted PaymentPayment (but excluding payments or distributions of its capital stock), except thatexcept:
(i) Any Loan Party or any Subsidiary payment of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited Indebtedness created under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it Documents;
(including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (Cii) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred regularly scheduled interest and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such principal payments to Holdings, to pay interest as and when due in respect of any Indebtedness, the Holdco Initial Loan Facility Indebtedness; prepayment of Capitalized Lease Obligations and (D) to partially redeem the repayment of any Indebtedness assumed by the Borrower or prepay Holdco Initial Loan Facility Indebtedness to any Subsidiary in connection with an acquisition within 45 days of the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose date of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07consummation of such acquisition;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on refinancings of Indebtedness to the Closing Date to consummate the VH Acquisitionextent permitted by Section 6.01;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting payment of Permitted Dispositions secured Indebtedness that becomes due as a result of the type described, and subject to voluntary sale or transfer of the limitations contained, in the definition thereofproperty or assets securing such Indebtedness;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases the repurchase, redemption, or other acquisition or retirement for value of Capital Stock any shares of Holdings any class of capital stock of the Borrower in exchange for (including any such exchange pursuant to the exercise of a conversion right or any Subsidiary of it privilege in connection with the exercise of stock options or warrants if such equity interests represent a portion which cash is paid in lieu of the exercise price issuance of such option fractional shares or warrantsscrip), provided that Restricted Payments made pursuant or out of the Net Proceeds of a substantially concurrent issuance and sale for cash (other than to this clause a Subsidiary) of, other shares of capital stock (vother than Redeemable Capital Stock) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting the repurchase, redemption, defeasance, retirement or acquisition for value or payment of principal of any subordinated Indebtedness or Redeemable Capital Stock in exchange for, or in an amount not in excess of the Net Proceeds of, a substantially concurrent issuance and sale for cash (other repurchases than to a Subsidiary of the Borrower) of, any capital stock or Redeemable Capital Stock of Holdings the Borrower; provided that -------- any such new Redeemable Capital Stock (A) shall have an aggregate liquidation preference that does not exceed the aggregate liquidation preference of the amount so refinanced; (B) has a stated maturity later than date six months after the Maturity Date;
(vii) the repurchase, redemption, defeasance, retirement, refinancing, acquisition for value or payment of principal of any subordinated Indebtedness (other than Redeemable Capital Stock) through the substantially concurrent issuance of the new subordinated Indebtedness of the Borrower; provided -------- that any such new subordinated Indebtedness (A) shall be in a principal amount that does not exceed the principal amount and accrued interest thereon so refinanced or the accreted value thereof as of the date of refinancing (or, if such subordinated Indebtedness provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration thereof, then such lesser amount as of the date of determination), plus the lesser of (x) the stated amount of any premium or other payment required to be paid in connection with such a refinancing pursuant to the terms of the Indebtedness being refinanced or (y) the amount of premium or other payment actually paid at such time to refinance the Indebtedness, plus, in either case, the amount of expenses of the Borrower incurred in connection with such refinancing, (B) has a stated maturity for its final scheduled principal payment later than the date six months after the Maturity Date and (C) is expressly subordinated in right of payment to all amounts payable by the Borrower to the Lenders at least to the same extent as the subordinated Indebtedness to be refinanced to the reasonable satisfaction of the Required Lenders;
(viii) the repurchase of shares of, or options to purchase shares of, common stock of Borrower or any Subsidiary of itits Subsidiaries from employees, provided officers, consultants or directors or any former employees, officers, consultants or directors of the Borrower or any of its Subsidiaries (or permitted transferees of such employees, officers, consultants or directors or former employees, officers, consultants or directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements or transactions approved by the Board of Directors of the Borrower under which such individuals purchase or sell or are granted that option to purchase or sell, shares of such paymentscommon stock; provided, however, that the aggregate amount of such repurchases -------- ------- shall not exceed $1,000,000 in any calendar year or $3,000,000 in the aggregate with any payments made for the term of this Agreement pursuant to this clause (viiviii);
(ix) below, shall the (A) payment of dividends on the Borrower's Series B Preferred Stock (in the form of cash or additional shares of Series B Preferred Stock) in an aggregate amount not to exceed $3,000,000 in any Fiscal Year (and calendar year; provided further that (A) in such amounts may, to the event extent not previously -------- paid, be aggregated through the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) period prior to the conversion or redemption of such unutilized portion may be carried forward to the next succeeding Fiscal Year of HoldingsSeries B Preferred Stock, and (B) Restricted Payments made pursuant to redemption of any shares of Series B Preferred Stock outstanding on the date of this clause during Agreement (including any Fiscal Year shall be deemed made, first, shares of Series B Preferred Stock issued on or after the date of this Agreement as dividends thereon or in respect of amounts carried over from the prior Fiscal Year such additional shares so issued) pursuant to clause the terms of such shares of Series B Preferred Stock and the certificate of incorporation of the Borrower as in effect on the date of this Agreement (Aor as such terms may be amended to the extent such amendment is determined by the Board of Directors, in good faith, not to adversely affect the Lenders);
(x) above the payment or declaration of any dividend or the making of any distribution on or the redemption of rights or any securities issued pursuant to the Borrower Rights Agreement;
(xi) the payment of cash in lieu of the issuance of fractional shares pursuant to any agreement, warrant or option and any repurchase or other acquisition of fractional shares from time to time; and
(xii) the acquisition of capital stock of the Borrower by the Borrower in connection with the cashless exercise of any options, secondwarrants or similar rights issued by the Borrower on or prior to January 1, 1998;
(xiii) the payment or declaration of any non-cash dividend or distribution in respect of amounts any of the Borrower's or any Subsidiaries' capital stock (including any preferred stock), it being understood that the Borrower shall not make any cash payments in excess of $1,000,000 in the aggregate (as permitted in definition of "Permitted Preferred Stock" set forth in Section 1.01) in respect to any redemption of preferred stock pursuant to Section 6(d) of Article Fourth of the Certificate of Amendment of the Borrower's Certificate of Incorporation dated November 6, 1997;
(xiv) the redemption or repurchase of any class of Redeemable Capital Stock; provided that the aggregate cash payments in respect of such -------- redemption shall not be in excess of $1,000,000 for the term of this Agreement; and
(xv) the payment of any cash dividends on Permitted Preferred Stock to the extent that (i) any such Fiscal Year payment shall not be made with the proceeds of any Loan made hereunder, (ii) both before and after such payment is made by the Borrower or any Subsidiary of the Borrower is in pro forma compliance with the financial covenants set forth in Section 6.12, (iii) the aggregate amount of any such payments shall not exceed $25,000,000 in any fiscal year and (iv) after giving effect thereto, the aggregate amount of all such payments declared or made after the date hereof shall not exceed the sum of the following:
(i) the Cumulative Operating Cash Flow determined at the time of such Restricted Payment less (ii) 150% of cumulative Consolidated Interest Expense determined for the period (treated as provided one accounting period) commencing on the date hereof and ending on the last day of the most recent fiscal quarter immediately preceding the date of such payment for which consolidated financial information of the Borrower is required to be available;
(B) the aggregate Net Proceeds received after the date hereof by the Borrower from the issuance or sale (other than to any of its Subsidiaries) of capital stock (other than Redeemed Capital Stock) of the Borrower or any options, warrants or rights to purchase such capital stock (other than Redeemed Capital Stock) of the Borrower (except to the extent such proceeds are used to purchase, redeem or otherwise retire capital stock as set forth above and in Section 6.08(vi) or (vii);
(C) the amount aggregate Net Proceeds received after the date hereof by the Borrower (other than from any of excess capacity that may be carried over from a prior Fiscal Year pursuant its Subsidiaries) upon the exercise of any options, warrants or rights to clause purchase capital stock (Aother than Redeemed Capital Stock) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year)of the Borrower;
(viiD) Holdings may make payments the aggregate Net Proceeds received after the date hereof by the Borrower from the conversion or exchange, if any, of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of debt securities or Redeemable Capital Stock of Holdings the Borrower or any Subsidiary its Subsidiaries into or for capital stock (other than Redeemed Capital Stock) of itthe Borrower plus, provided that to the extent such paymentsdebt securities or Redeemable Capital Stock were issued after the date hereof, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over Net Proceeds from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yeartheir original issuance; and
(viiiE) so long as no Event in the case of Default shall have occurred and be continuingthe disposition or repayment of any Investment constituting a Restricted Payment, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) equal to the extent lesser of (x) the capacity cash return of capital with respect to make Restricted Payments pursuant to this clause such Investment (viless the cost of disposition and taxes, if any) for any Fiscal Year exceeds and (y) the aggregate initial amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearInvestment.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, make or agree to pay or make issue any payment or preferred stock other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments of interest in-kind of the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notesthan Permitted Preferred Stock, the Holdco Initial Series B Preferred Stock and other preferred stock issued to a Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Party.
Appears in 1 contract
Samples: Credit Agreement (Psinet Inc)
Restricted Payments; Certain Payments of Indebtedness. From and after the Closing, so long as TPG Persons Beneficially Own, in the aggregate, at least 25% of the Original Number of Combined Shares, without the prior written approval of the Investor:
(a) No Loan Party willThe Company will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party that the Company may declare and pay cash dividends or make other distributions with respect to its capital stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits capital stock, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2ii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings Company or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only may pay dividends or other distributions with respect to clause any shares of their capital stock or the Series A Preferred Stock in accordance with the Series A Certificate of Designations, (iiii) thereof as it relates Subsidiaries may declare and pay dividends ratably with respect to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom their capital stock and (2iv) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries Company may make Restricted Payments Payments, not exceeding $200,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for the purpose of paying amounts owing under the Advisory Agreementdirectors, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions management or employees of the type describedCompany and the Subsidiaries, and subject to including the limitations containedredemption or purchase of capital stock of the Company held by former directors, in management or employees of the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings Company or any Subsidiary following termination of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearemployment.
(b) No Loan Party willThe Company will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except
except (i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness permitted under the Loan Parties and their Subsidiaries;
Credit Agreement, (ii) (A) scheduled payments of principal pursuant to the Restructuring, and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;
(iii) prepayment in whole or in part payment of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required Indebtedness permitted under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Indenture.
Appears in 1 contract
Samples: Restructuring Agreement (Memc Electronic Materials Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions with respect to its capital stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings their capital stock and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplicationPayments, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided$l,000,000 during any fiscal year, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) and in accordance with stock option plans or other benefit plans for any Fiscal Year exceeds management or employees of the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to Borrower and the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearSubsidiaries.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 cancelation or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) payment of regularly scheduled interest (Aincluding any additional interest arising pursuant to any registration rights agreement related thereto) scheduled and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or respect of any Indebtedness other than payments in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Debt prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.01; and
(iv) (A) mandatory prepayments by the Borrower payment of secured Indebtedness that becomes due as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings a result of the Holdco Initial Loan Facility voluntary sale or transfer of the property or assets securing such Indebtedness to (including the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement purchase of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notesasset subject to a capital lease obligation pursuant to a purchase option) made permitted by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01this Agreement.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No The Loan Party willParties will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, exists or would arise therefrom the Loan Parties may declare and pay dividends with respect to their Subsidiaries may capital stock payable solely in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount additional shares of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yeartheir common stock.
(b) No The Loan Party willParties will not, nor and will it not permit any Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payment of regularly scheduled interest and principal payments as and when due in Capital Stock (as long as no Change in Control would result therefrom) and payments respect of interest in-kind any permitted Indebtedness incurred subsequent to the commencement of the Loan Parties and their SubsidiariesProceedings or for payments required or permitted to be made pursuant to an order of the Bankruptcy Court in the Proceedings for adequate protection payments pursuant to the Bankruptcy Code;
(ii) refinancings of Indebtedness described in clause (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromi), prepayments in whole or in part of above, to the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Dateextent permitted by Section 6.1;
(iii) prepayment payments in whole an amount not to exceed $1,500,000 or such greater amount as the Administrative Agent agrees to in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Noteswriting to fund a reclamation program, the Holdco Initial Loan Facility or terms of which are subject to the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Administrative Agent's consent; and
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as return of customer deposits described in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.6.1(a)
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Lamonts Apparel Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrowers will not, nor and will it not permit any Subsidiary other member of it the Borrower Affiliated Group to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
as long as no Default or Event of Default exists or would arise therefrom, and after giving effect thereto, the Borrowers are Solvent (i) Any Loan Party or any Subsidiary Borrower may declare and pay dividends with respect to its capital stock payable solely in additional shares of a Loan Party their common stock, (ii) the Subsidiaries of the Lead Borrower may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest)their capital stock, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on only if the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuingPayment Conditions are then satisfied, the Loan Parties Lead Borrower may repurchase its capital stock and/or declare and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) pay cash dividends to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearits shareholders.
(b) No Loan Party willThe Borrowers will not at any time, nor and will it not permit any Subsidiary other member of it to, the Borrower Affiliated Group to make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments only if the Payment Conditions are then satisfied, prepayment of (i) the Promissory Note dated October 1, 2004 by GameStop Corp. in Capital Stock favor of B&N GameStop Holding Corp., (as long as no Change ii) that certain mortgage dated May 25, 2005 by EB Sadsbury Property Holding L.P. in Control would result therefromfavor of Thrivent Financial for Lutherans on the Coatesville Property and (iii) and payments of interest in-kind of the Loan Parties and their Subsidiaries;Senior Notes.
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and in respect of any Indebtedness permitted under Section 6.1 (B) as long as no Specified Default then exists or would arise therefrom, prepayments other than in whole or connection with Indebtedness the principal of which is prohibited from payment in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;accordance with Section 6.1(b)); and
(iii) prepayment refinancings of Indebtedness described in whole or in part of the Senior Initial Loan Facilityclause (ii), Additional Borrower Unsecured Senior Notesabove, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repaymentpermitted by Section 6.1, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, including without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement refinancing as a result of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (includingrollover loans, without limitation, Holdco Initial Loans and any Holdco Notes) made by publicly issued or privately placed notes or exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred notes issued in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01for such Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (GameStop Corp.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party Subsidiaries may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year favor of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility any Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datepermitted by Section 6.01;
(iii) prepayment in whole or in part payment of secured Indebtedness that becomes due as a result of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, voluntary sale or transfer of the Holdco Initial Loan Facility property or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making assets securing such payment or prepaymentIndebtedness as permitted herein;
(iv) any Unrestricted Subsidiary may declare and pay dividends to holders of its Equity Interests, provided that (Ax) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable dividends are paid pro rata to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as all such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date holders of its Equity Interests and (Cy) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments Net Proceeds therefrom that are no less favorable payable to the Borrower than those any Loan Party are applied in the Senior Note Indenture on the First Amendment Effective Date;accordance with Section 2.10; and
(v) partial redemption or prepayment by Holdings distributions of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness common stock of the Borrower incurred in compliance with pursuant to the Permitted Dealer/Employer Stock Program or as contemplated by Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.012.10(c)(X).
Appears in 1 contract
Samples: Credit Agreement (Purina Mills Inc/)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any each of the Loan Party or any Subsidiary of a Loan Party Parties may declare and pay cash 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 make other distributions in shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries of the Borrower may declare and pay dividends ratably with respect to pay franchise taxes and other feestheir Equity Interests, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (Biii) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over result immediately after giving effect to such prior Fiscal Year);
(vii) Holdings Restricted Payment, FHC may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Loan Parties in an amount not to exceed $2,500,000 during the term of this clause (vi) for any Fiscal Year exceeds Agreement, plus the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, cash settlements in respect of amounts carried over from stock-based awards granted to any Person who replaces the prior Fiscal Year pursuant to clause (a) above andinterim chief executive officer of the Loan Parties, second, in respect of amounts permitted for such Fiscal Year as provided above and (civ) subject to the amount satisfaction of excess capacity that the Payment Conditions, FHC may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearmake other Restricted Payments.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, securities securities, or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified Indebtedness, or any payment or other distribution (whether in cash, securities securities, or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancellation, or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (Ax) payment of regularly scheduled interest and principal payments of principal and interest as and when due in respect of any Indebtedness permitted under Section 6.01, other than payments in respect of the Subordinated Indebtedness prohibited by the subordination provisions thereof and (By) as long as no Specified Default then exists or would arise therefrom, payments and prepayments in whole or in part of the Senior Initial Loan Facility IndebtednessRevolver Debt, Additional Borrower Unsecured Senior Notes and subject in all respects to the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in terms of the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing DateIntercreditor Agreement;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments 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 Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;of Section 6.05; and
(v) partial redemption or prepayment by Holdings subject to the satisfaction of the Holdco Initial Loan Facility Payment Conditions, payment of other Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with not otherwise permitted under this Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.08(b).
Appears in 1 contract
Samples: Term Loan Credit Agreement (Francesca's Holdings CORP)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Restricted Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends with respect to its capital stock payable solely in additional shares of Common Stock or make other distributions of property warrants to a Loan Partypurchase its Common Stock, (ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their capital stock; provided that any such Restricted Payments made no -------- distribution referred to Holdings under in this clause (iii) shall be used only (A)(x) permitted to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims be made by any director Special Purpose Subsidiary if any Default or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuingcontinuing or would result therefrom, (iii) the Loan Parties and their Subsidiaries Borrower may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplicationPayments, not exceeding $1,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (iv) following the end of the fiscal year of the Borrower ending December 31, 2001, and following the end of each subsequent fiscal year, the Borrower may pay cash dividends with respect to the Series A Preferred Stock in an amount set forth below not in excess of 50% of Excess Cash Flow for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 fiscal year; provided, provided that (athe -------- prepayments required by Section 2.09(c) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed have previously been made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Restricted Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in 117 respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 cancelation or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due in respect of any Indebtedness permitted by Section 6.01(a), other than (x) payments in respect of the Subordinated Debt prohibited by the subordination provisions thereof and (By) as long as no Specified Default then exists or would arise therefrom, prepayments payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Series A Bonds or the Holdco Initial Loan Facility Indebtedness Series B Bonds prohibited by the proviso in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date6.01(a)(v);
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (Apayment of secured Indebtedness permitted by Section 6.01(a) mandatory prepayments by that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective DateIndebtedness;
(v) partial redemption or prepayment by Holdings mandatory prepayments of the Holdco Initial Loan Facility Indebtedness Series A Bonds as a result of the issuance of equity securities by the Borrower with up to 50% of the extent net cash proceeds of any such issuance; provided, that, no prepayment of the -------- ---- Series A Bonds will be made in connection with (i) sales of stock necessary to make an AHYDO “catch-up” payment thereon;provide the initial $128,000,000 of cash equity capitalization of the Borrower or, if the Supplemental Closing (as defined in the Securities Purchase Agreement) occurs, the initial $133,000,000 of cash equity capitalization of the Borrower, (ii) the issuance by the Borrower of approximately $39,900,000 of stock to AW and approximately $39,700,000 of stock to other Equity Participants in connection with the San Xxxx Acquisition and (iii) the issuance of the Borrower of approximately $4.0 million of stock to stockholders of THC San Diego and approximately $41,000,000 of stock to certain Equity Participants in connection with the THC San Diego Merger); and
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out mandatory prepayments of the proceeds Series B Bonds in accordance with the terms of Section 10.5 of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Lucent Note Purchase Agreement.
Appears in 1 contract
Samples: Credit Agreement (Telecorp PCS Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor The Borrower shall not (and the Borrower shall ensure that each Group Company will it permit any Subsidiary of it to, not) declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(i) Any Loan Party or any each Group Company which is a wholly-owned Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions of property with respect to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause its capital stock;
(i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (Bii) so long as no Default or Event of Default has occurred and is continuing, the Borrower may repurchase shares of common stock issued to employees in connection with employee incentive plans for an aggregate consideration of not more than $500,000 in any Fiscal Year; and
(1iii) so long as no Default or Event of Default has occurred and is continuing (or would arise therefrom and (2) occur upon such payment or distribution), the Borrower is not prohibited under the Senior Initial Loan Facility may declare and pay a dividend or the ABL Facility from making such payments to Holdingsmake a distribution, to make payments in connection with the repurchase direct or indirect, on account of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and equity interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility now or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearhereafter outstanding.
(b) No Loan Party will, nor The Borrower shall not (and the Borrower shall ensure that each Group Company will it permit any Subsidiary of it to, not) 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 defeasance or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and in respect of any Indebtedness permitted by Section 7.1 (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date);
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 7.1 (Indebtedness); and
(iv) (A) mandatory prepayments by the Borrower payment of secured Indebtedness that becomes due as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings a result of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance voluntary sale or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out transfer of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01property securing such Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Dover Downs Gaming & Entertainment Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Restricted Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except thatexcept:
(i) Any Loan Party each Restricted Subsidiary of the Borrower may make Restricted Payments to the Borrower or any Restricted Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions the Borrower (and, in the case of property to a Loan Party; provided that any such Restricted Payments made Subsidiary that is not a wholly-owned Subsidiary, to Holdings under this clause each other owner of Equity Interests of such Subsidiary ratably based on their relative ownership interests of the relevant class of Equity Interests);
(i) shall be used only (A)(xii) to pay general corporate overhead the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.03 and similar expenses incurred Section 6.04 (other than Section 6.04(j), (m), (n), (q) and (t));
(iii) to the extent constituting a Restricted Payment, the conversion of the Senior Secured Convertible Notes and the Existing Notes into Equity Interests pursuant to the terms thereof;
(iv) repurchases, redemptions or reductions in number of shares issued (including, by Holdings utilization of the "net share" concept) by the Borrower of any Equity Interests in the ordinary course Borrower made in connection with (I) the surrender of business, or shares by employees to (x) facilitate the amount payment by such employees of any indemnification claims made the taxes associated with compensation received by any director or officer of Holdingssuch employees under the Borrower's stock-based compensation plans and, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain satisfy the corporate existence purchase price of Holdings nonqualified stock options and (zII) to pay taxes that are due and payable the deduction by Holdings as the parent Borrower, of a consolidated group portion of restricted stock or performance shares previously (i.e. prior to the date of the 111 deduction) granted to employees under the Borrower's stock-based compensation plans to facilitate the payment by such employees of the taxes associated with the vesting of such restricted stock and performance shares, in an amount not to exceed (for both clauses (I) and (II)), together with all Restricted Payments made pursuant to Section 6.08(a)(xiv), $4,000,000 in the aggregate in any fiscal year; provided, in each case, that includes Holdings prior to and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) after giving effect to such repurchases, redemptions or reductions no Default or Event of Default has occurred and exists or is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereofcontinuing;
(v) The Loan Parties to the extent constituting a Restricted Payment, payments of the Existing Notes to the extent permitted by Section 6.08(b)(vii) or (viii);
(vi) to the extent constituting a Restricted Payment, payments of the Senior Secured Convertible Notes made pursuant to an exchange for or out of the proceeds of Indebtedness constituting a Permitted Refinancing of the Senior Secured Convertible Notes permitted under Section 6.01(a)(xxiii);
(vii) [reserved];
(viii) [reserved];
(ix) redemptions in whole or in 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 Lenders in all respects material to their Subsidiaries may make Restricted Payments constituting 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 Capital Stock Equity Interests in consideration of Holdings or any Subsidiary of it such payments including deemed repurchases in connection with the exercise of stock options and the vesting of restricted stock and restricted stock units;
(xi) the Borrower may (A) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof 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, in both cases of (A) and (B), in an amount not to exceed $500,000 in the aggregate;
(xii) [reserved];
(xiii) any Restricted Payment made in connection with the Transactions (other than borrowings under the ABL Credit Agreement) and any fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) related thereto, including Transaction Expenses; and
(xiv) payments made by 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 Equity Interests represent a portion of the exercise 112 price of such option options or warrantswarrants or required withholding or similar taxes, provided that in an amount not to exceed, together with all Restricted Payments made pursuant to this clause (v) shall not exceed Section 6.08(a)(iv), $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, 4,000,000 in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearfiscal year.
(b) No Loan Party willThe Borrower will not, nor will it permit any Restricted Subsidiary of it to, make or agree to pay pay, directly or make indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified IndebtednessJunior Financing, 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 such Specified IndebtednessIndebtedness prior to the scheduled maturity date thereof (collectively, “Restricted Debt Payments”), except:
(i) payment of regularly scheduled interest and principal payments, payments of fees, expenses and indemnification obligations when due in respect of any Indebtedness, other than payments in Capital Stock (as long as no Change in Control would result therefrom) and payments respect of interest in-kind of any Junior Financing prohibited by the Loan Parties and their Subsidiariessubordination provisions thereof;
(ii) refinancings of Indebtedness with proceeds of Permitted Refinancing Indebtedness permitted to be incurred under Section 6.01;
(Aiii) the conversion of any Junior Financing to or payments with Equity Interests (other than Disqualified Equity Interests) of the Borrower;
(iv) from and after the Second Additional Funding Date, prepayments, redemptions, purchases, defeasances and other payments or distributions in respect of Junior Financings prior to their scheduled payments maturity in an aggregate amount not to exceed an amount at the time of principal and interest as and when due and making any such prepayment, redemption, purchase, defeasance or other payment or distributions, together with any other such prepayment, redemption, purchase, defeasance or other payment or distributions made utilizing this clause (Biv), not to exceed the portion, if any, of the Restricted Debt Payment Amount that the Borrower elects to apply pursuant to this clause (iv);
(v) as long as no Specified Default then exists any Restricted Debt Payments made in connection with the Transactions (other than borrowings under the ABL Credit Agreement);
(vi) [reserved];
(vii) prepayment, purchase, repurchase, redemption, defeasance, discharge or would arise therefrom, prepayments other retirement in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior 2024 Notes and the Holdco Initial Loan Facility 2026 Notes, in each case, made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid solely in lieu of the issuance of fractional shares) for, or out of proceeds of, Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datepermitted to be incurred under Section 6.01(a)(xvi) are used to make such prepayment;
(iiiviii) prepayment in whole or in part of principal amount of the Senior Initial Loan Facility2024 Notes if the then applicable scheduled maturity date of the 2024 Notes is within 6 months of such prepayment and the aggregate principal amount of the 2024 Notes then outstanding does not exceed $20,000,000; provided, Additional Borrower Unsecured Senior Notesthat, as of the date of any such prepayment and after giving pro forma effect thereto, the Holdco Initial Loan Facility or the Term Loan Financing Facility Borrower shall be in compliance with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.10;
(ivix) [reserved]; 113
(Ax) mandatory prepayments by other than with respect to any Indebtedness incurred pursuant to Section 6.01(a)(xvi), payments as part of an applicable high yield discount obligation or AHYDO catch-up payment; and
(xi) [reserved].
(c) 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 Borrower effect of such amendment or modification (when taken as required under the Senior Initial Loan a whole) is in violation of any Intercreditor Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture other applicable intercreditor agreement or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable subordination agreement. Notwithstanding anything herein to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Datecontrary, (Bi) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on foregoing provisions of this Section 6.08 will not prohibit the Closing Date payment of any Restricted Payment or the consummation of any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repaymentirrevocable redemption, purchase, redemption, repurchase, defeasance or other acquisition payment within 60 days after the date of declaration of such Restricted Payment or retirement the giving of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out irrevocable notice of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repaymentsuch redemption, purchase, redemption, repurchase, defeasance or other acquisition payment, as applicable, if at the date of declaration or retirement the giving of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out such notice such payment would have complied with the provisions of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01this Agreement.
Appears in 1 contract
Samples: Amendment Agreement and Joinder to Foreign Guarantee Agreement (Invacare Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or make other distributions with respect to its capital stock payable solely in additional shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings their capital stock and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplicationPayments, not exceeding the amount set forth below for such Fiscal Year: 2007 $ $1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; providedduring any fiscal year, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) and in accordance with stock option plans or other benefit plans for any Fiscal Year exceeds management or employees of the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to Borrower and the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearSubsidiaries.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 cancelation or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) payment of regularly scheduled interest (Aincluding any additional interest arising pursuant to any registration rights agreement related thereto) scheduled and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or respect of any Indebtedness other than payments in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Debt prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.01; and
(iv) (A) mandatory prepayments by the Borrower payment of secured Indebtedness that becomes due as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings a result of the Holdco Initial Loan Facility voluntary sale or transfer of the property or assets securing such Indebtedness to (including the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement purchase of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notesasset subject to a capital lease obligation pursuant to a purchase option) made permitted by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01this Agreement.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party the Borrower may purchase or redeem its capital stock to satisfy its obligations under any Subsidiary Synthetic Purchase Agreement in existence on the date hereof as long as no Default exists or would result therefrom (including, any Default arising as a result of a Loan Party the violation of Section 7.01), (ii) Subsidiaries may declare and pay cash dividends or make other distributions of property ratably with respect to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of businesstheir capital stock, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (ziii) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to may make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest payment in respect of notes preferred Equity Interest issued by Holdings to stockholders in connection therewith), provided that under the permissions of Section 6.01(b) when such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearbecome due.
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) scheduled payments payment of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of Indebtedness created under the Senior Initial Revolver Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes Documents and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing DateSynthetic Real Property Lease;
(iii) prepayment payment of regularly scheduled interest and principal payments as and when due in whole or respect of any Indebtedness, other than payments in part respect of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, Subordinated Debt prohibited by the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentsubordination provisions thereof;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable refinancings of Indebtedness to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments extent permitted by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective DateSection 6.01;
(v) partial redemption or prepayment by Holdings payment of secured Indebtedness that becomes due as a result of the Holdco Initial Loan Facility Indebtedness to voluntary sale or transfer of the extent necessary to make an AHYDO “catch-up” payment thereon;property or assets securing such Indebtedness; and
(vi) Subsidiaries may make payment in respect of preferred Equity Interest issued under the permissions of Section 6.01(b) when such payments become due.
(c) Neither the Borrower nor any repaymentSubsidiary shall enter into or be party to, purchaseor make any payment under, redemption, repurchase, defeasance or other acquisition or retirement any Synthetic Purchase Agreement unless (i) in the case of any Indebtedness constituting Senior Initial Loan Facility Indebtedness Synthetic Purchase Agreement related to any Equity Interest, (including, without limitation, Senior Initial Loans A) the payments required to be made thereunder are limited to the $1,000,000 and any Senior Notes(B) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness obligations of the Borrower incurred and the Subsidiaries thereunder are subordinated to the Indebtedness and other obligations arising hereunder and under the other Loan Documents on terms satisfactory to the Required Lenders and (ii) in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement the case of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness Synthetic Purchase Agreement related to any subordinated Indebtedness, (including, without limitation, Holdco Initial Loans A) the payments required to be made thereunder are limited to the amount permitted under Section 6.08(b) of this Agreement and any Holdco Notes(B) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness obligations of the Borrower incurred in compliance with Section 6.01and the Subsidiaries thereunder are subordinated to the Indebtedness and other obligations arising hereunder and under the other Loan Documents to at least the same extent as the subordinated Indebtedness to which such Synthetic Purchase Agreement relates. The Borrower shall promptly deliver to the Lender a copy of any Synthetic Purchase Agreement to which it becomes a party.
Appears in 1 contract
Samples: Term Credit Agreement (Acxiom Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash dividends or with respect to its Equity Interest payable solely in additional units of its Equity Interests, (ii) Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their Equity Interests, and (iii) the Borrower may make any other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1A) no Event of Default has then occurred and is continuing or would arise therefrom after giving effect thereto and (2B) at the Borrower is time thereof and after giving pro forma effect thereto, the Leverage Ratio (as calculated pursuant to Section 6.12(b)) is, and would be, less than 2.25 to 1.0. For the avoidance of doubt, this Section 6.07 shall not prohibited under the Senior Initial Loan Facility limit any issuances of securities or the ABL Facility from making such other payments with respect to Holdings, to make payments any Equity Interests in connection with employment agreements, stock options and stock ownership plans entered into by employees, officers and directors of the repurchase of Capital Stock of Holdings Borrower or any Subsidiary of it (including payments of principal its Subsidiaries and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are as otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (Aany payment in respect of Affiliated Subordinated Debt to the extent such payment is made from funds permitted to be paid as a Restricted Payment pursuant to Section 6.07(a)(iii) scheduled payments and otherwise in conformity with the terms of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, prepayments in whole or in part of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination applicable thereto;
(iii) prepayment any payment in whole or respect of Unaffiliated Subordinated Indebtedness made in part of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility accordance with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentUnaffiliated Subordinated Indebtedness Documents and Section 6.10;
(iv) (A) mandatory prepayments payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Indebtedness prohibited by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Datesubordination provisions thereof;
(v) partial redemption or prepayment by Holdings refinancings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;permitted by Section 6.01; and
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payment of any secured Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out that becomes due as a result of the proceeds voluntary sale or transfer of the substantially concurrent issuance property or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01assets securing such Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Myr Group Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party Subsidiaries may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only ratably with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearcapital stock.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of it to, make or agree to pay or make make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) so long as no Event of Default has occurred and is continuing or will exist immediately thereafter, payment of (Ax) regularly scheduled payments of principal and interest payments as and when due in respect of any Indebtedness permitted by clauses (iv) and (Bv) as long as no Specified Default then exists or would arise therefromof Section 6.02(a), prepayments and (y) regularly scheduled interest payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Subordinated Notes and not prohibited by the Holdco Initial Loan Facility Indebtedness Intercreditor Agreement; provided that any interest on the Subordinated Notes accruing at a rate in a principal amount not exceeding $10,000,000 excess of 13.00% per annum must be paid in kind through the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Dateissuance of additional Subordinated Notes;
(iii) prepayment in whole so long as no Event of Default has occurred and is continuing or in part will exist immediately thereafter, refinancings of Indebtedness permitted by clauses (iv) and (v) of Section 6.02(a) to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, extent that the Holdco Initial Loan Facility incurrence of such refinancing Indebtedness is permitted by either clause (iv) or the Term Loan Financing Facility with the proceeds (v) of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.02(a); and
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial no Event of Default has occurred and is continuing or will exist immediately thereafter, payment to a Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments Party of intercompany Indebtedness permitted by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
clause (vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.02(a).
Appears in 1 contract
Samples: Credit Agreement (T Netix Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary each of a Loan Party Holdings and the Borrower may declare and pay cash 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 capital stock, (iii) the Borrower may make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead permit Holdings to make payments pursuant to and similar expenses incurred by Holdings in the ordinary course of business, accordance with stock option plans or the amount of any indemnification claims made by any director other benefit plans for management or officer employees of Holdings, the Borrower and the Subsidiaries in an aggregate amount not to exceed $7,500,000 during any fiscal year, (yiv) so long as no Default has occurred and is continuing or would result therefrom, the Borrower may make Restricted Payments to pay franchise taxes and other feesHoldings 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), taxes and expenses required (v) Holdings may (A) redeem the Qualified Preferred Stock pursuant to maintain the corporate existence a conversion into common stock of Holdings and (zB) 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 are due and payable by Holdings as the parent part of a consolidated group that includes Holdings the Borrower, to the extent that such taxes relate to the operations of the Borrower and its Subsidiaries the Subsidiaries, (including Unrestricted 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, (Bviii) so long as (1) no Event of Default has shall have occurred and is be continuing or would arise therefrom result therefrom, Holdings may repurchase, redeem or retire its outstanding Equity Interests or make other Restricted Payments (and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose proceeds of paying amounts owing under the Advisory Agreementwhich are to be used by Holdings to effect such repurchases, redemptions or retirements) in an aggregate amount not to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 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 not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward greater than or equal to the next succeeding Fiscal Year of Holdings2.00 to 1.00, (Bx) $10,000,000 minus (y) the aggregate amount of Restricted Payments previously made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearviii);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (AB) in the event the entire $3,000,000 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 not utilized in any Fiscal Year under clauses (vi) less than 2.00 to 1.00 and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward greater than or equal to the next succeeding Fiscal Year of Holdings1.50 to 1.00, (Bx) $25,000,000 minus (y) the aggregate amount of Restricted Payments previously made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (Aviii) above and, second, in respect of amounts permitted for such Fiscal Year as provided above 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 less than 1.50 to 1.00, (x) $40,000,000 minus (y) the aggregate amount of excess capacity that may be carried over from a prior Fiscal Year Restricted Payments previously made pursuant to this clause (Aviii) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
and (viiiix) so long as no Event of Default shall have occurred and be continuingcontinuing or would result therefrom, Holdings may declare and pay dividends in respect of the Loan Parties shares of its common stock (and their Subsidiaries the Borrower may in each Fiscal Year make Restricted Payments the proceeds of which are used by Holdings to make such dividend payments) in an aggregate amount, without duplication, amount not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause exceed $2,000,000 during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearfiscal year.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Debt or the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in Subordinated Promissory Note prohibited by the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments by payment of secured Indebtedness that becomes due as a result of the Borrower as required under voluntary sale or transfer of the Senior Initial Loan Agreement as in effect on the Closing Date property or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as assets securing such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective DateIndebtedness;
(v) partial redemption or prepayment by Holdings of the Holdco Senior Subordinated Notes in accordance with the terms of the Senior Subordinated Notes Indenture with the Net Proceeds of the Initial Loan Facility Indebtedness Public Offering (including any premium (if any) and accrued and unpaid interest thereon to the extent necessary date of such redemption); provided that (A) the aggregate principal amount of Senior Subordinated Notes redeemed pursuant to make an AHYDO “catch-up” payment thereonthis 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) any repayment, purchase, redemption, repurchaserepurchase and retirement of Subordinated Debt (including any premium (if any) and accrued and unpaid interest thereon to the date of such redemption, defeasance repurchase or retirement) with the Net Proceeds of any issuance of Equity Interests of Holdings (other acquisition 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 of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (includingto the extent not previously applied to repurchase Subordinated Debt, without limitationto make Permitted Acquisitions, Senior Initial Loans and any Senior Notes) made by exchange for, to make Capital Expenditures or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with to make investments under Section 6.01;6.04 (m)); and
(vii) any repayment, purchase, 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), defeasance 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 acquisition disposition pursuant to Section 6.05(c) or retirement (g), the Borrower would be required by the terms of the Senior Subordinated Notes Documents or the terms of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness Additional Senior Subordinated Notes to redeem or repurchase (includingor to make an offer to redeem or repurchase) any Senior Subordinated Notes or Additional Senior Subordinated Notes, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange forthen the Borrower shall, or out shall cause one or more of the proceeds of the substantially concurrent issuance its Subsidiaries to, (i) prepay Term Loans in accordance with Section 2.11 as if such sale, transfer or sale ofdisposition constituted a “Prepayment Event” or (ii) acquire real property, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance equipment or other tangible assets, in each case in a manner that will eliminate any requirement to redeem or 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 first day on which the Borrower would be required to redeem or retirement repurchase (or commence an offer to redeem or repurchase) Senior Subordinated Notes or Additional Senior Subordinated Notes under the Senior Subordinated Notes Documents or the terms of any Indebtedness constituting such Additional Borrower Unsecured Senior Notes made by exchange forSubordinated Notes, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01as applicable.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Interline Brands, Inc./De)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willprior to the date of the applicable distribution) with respect to (A) the initial $15,000,000 in stated value of the Series D Preferred Capital Interests held by Mid-Am Capital, nor provided that as of the end of the fiscal quarter ended immediately prior to such distributions and after giving pro forma effect to such distributions, the Consolidated Interest Expense Coverage Ratio shall be greater than 2.25 to 1.00 and (B) the remainder of the Series D Preferred Capital Interests (including preferred limited partnership interests issued after the Effective Date with respect to the Series D Preferred Capital Interests issued prior to such date), provided that, as of the end of the fiscal quarter ended immediately prior to such distributions and after giving pro forma effect to such distributions, the Consolidated Interest Expense Coverage Ratio shall be greater than 2.40 to 1.00, and (iv) the Borrower may make Permitted Tax Distributions.
(b) The Borrower will it not, and will not permit any Subsidiary of it to, declare or make, make or agree to pay or make, directly or indirectly, any Restricted Payment, except that
(i) Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year.
(b) No Loan Party will, nor will it permit any Subsidiary of it to, make or agree to pay or make any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 cancelation or termination of any such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Debt prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Date;subordination provisions thereof; and
(iii) prepayment in whole or in part refinancings of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made permitted by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01.
Appears in 1 contract
Samples: Credit Agreement (SFG Capital Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Company will not, nor will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Company may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment its capital stock payable solely in additional shares of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred its common stock and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, declare and pay dividends ratably with respect to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearcapital stock.
(b) No Loan Party willThe Company will not, nor will it permit any Subsidiary of it 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 ), other than regularly scheduled payments as and when due, in respect of principal of or interest on any Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified Indebtednessof, 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 such Specified Indebtednessof, except
(i) payments in Capital Stock any debt securities issued pursuant to the Indenture, dated as of January 1, 1991, between the Company and JPMorgan Chase Bank, as indenture trustee or (as ii) any other Indebtedness of the Company or any Subsidiary that is scheduled to mature after the Maturity Date.
(c) Notwithstanding Section 6.08(b), so long as no Change in Control Default has occurred and is continuing or would result therefrom, the Borrowers may (i) and payments of interest in-kind of retire the Loan Parties and their Subsidiaries;
2004 Notes at any time, (ii) (Ax) scheduled payments refinance, on terms and conditions satisfactory to the Administrative Agents, with senior or subordinated unsecured indebtedness, any of principal and interest as and when due the 2007 Notes prior to the final maturity thereof, and (By) after no less than ninety five percent (95%) of the 2007 Notes have been either (1) refinanced on terms and conditions satisfactory to the Administrative Agents with senior or subordinated unsecured indebtedness, or (2) prepaid, redeemed, purchased, defeased or retired in accordance with paragraph (d) below, refinance, on terms and conditions satisfactory to the Administrative Agents, with senior or subordinated unsecured indebtedness, any of the 2011 Notes. Although not exclusive, the Administrative Agents agree that terms and conditions substantially similar to the 2011 Notes, at a then market rate of interest, would be satisfactory to the Administrative Agents for the purposes of transactions contemplated by this Section 6.08(c).
(d) Notwithstanding Section 6.08(b), the Borrowers may prepay, redeem, purchase, defease or retire any of the 2007 Notes and up to U.S.$25,000,000 of other of the Company's debt securities as long as (i) no Specified Default then exists has occurred or would arise result therefrom, prepayments in whole or in part of (ii) during the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes ninety (90) day period prior to (on a pro forma basis) and the Holdco Initial Loan Facility Indebtedness in ninety (90) day period following (on a principal amount not exceeding $10,000,000 in projected basis) the aggregate in any Fiscal Year date of such prepayment, redemption, purchase or retirement, both before and not exceeding $25,000,000 in after giving effect to such prepayment, redemption, purchase or retirement, there shall be an actual or expected average Borrowing Base Availability plus invested cash held by the aggregate since Administrative Agents, which is pledged as collateral and subject to a control agreement satisfactory to the Closing Date;
Administrative Agent, of at least U.S.$150,000,000, of which no more than U.S.$50,000,000 may be invested cash held by the Administrative Agent, and (iii) prepayment the aggregate amount of prepayments, redemptions, purchases or retirements pursuant to this clause (d) of Indebtedness shall not exceed U.S.$75,000,000 in whole or in part of any fiscal year and shall not exceed U.S.$255,000,000 during the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;
(iv) (A) mandatory prepayments by the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings of the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Availability Period.
Appears in 1 contract
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary each of a Loan Party the Borrowers may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings, (y) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates its common stock payable solely in additional shares of its common stock, and, with respect to non-payment its preferred stock, payable solely in additional shares of interest)such preferred stock or in shares of its common stock, SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, and (iii) the Borrowers may make Restricted Payments, not exceeding $500,000 during any fiscal year of the Company, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrowers and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries the Borrowers may make other Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion satisfaction of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearPayment Condition.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness permitted under Section 6.01, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepaymentSection 6.01;
(iv) (A) mandatory prepayments 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 Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Dateof Section 6.05;
(v) partial redemption or prepayment by Holdings prepayments of Indebtedness incurred pursuant to Section 6.01(e) if the Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereonPayment Condition is satisfied; [reserved];
(vi) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement payments of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans intercompany loans and any Senior Notes) made advances to the extent permitted by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;Global Intercompany Note; and
(vii) any repaymenttermination or similar payments in respect of Swap Agreement obligations arising under that certain ISDA Master Agreement dated January 30, purchase2018 by and between Citizens Bank of Pennsylvania and CSS Industries, redemption, repurchase, defeasance Inc. in an aggregate amount not to exceed $1,000,000 so long as (i) no Default or other acquisition Event of Default has occurred and is continuing or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness would result immediately after giving effect to such payments and (including, without limitation, Holdco Initial Loans and any Holdco Notesii) such payments are made by exchange for, or out within forty-five (45) days of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01Effective Date.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of it to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that
(i) Any Loan Party or any Subsidiary of a Loan Party the Borrower may declare and pay cash 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 make other distributions in shares of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdingsits common stock, (yii) Subsidiaries may declare and pay dividends ratably with respect to pay franchise taxes and other feestheir Equity Interests, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (B) so long as (1) no Event of Default has occurred and is continuing or would arise therefrom and (2iii) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vii) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplicationPayments, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided$100,000 during any fiscal year, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) and in accordance with stock option plans or other benefit plans for any Fiscal Year exceeds management or employees of the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above Borrower and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Yearits Subsidiaries.
(b) No Loan Party will, nor will it permit any Subsidiary of it 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and payments payment of interest in-kind of Indebtedness created under the Loan Parties and their SubsidiariesDocuments;
(ii) (A) payment of regularly scheduled interest and principal payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefromin respect of any Indebtedness permitted under Section 6.01, prepayments other than payments in whole or in part respect of the Senior Initial Loan Facility Indebtedness, Additional Borrower Unsecured Senior Notes and Subordinated Indebtedness prohibited by the Holdco Initial Loan Facility Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since the Closing Datesubordination provisions thereof;
(iii) prepayment in whole or in part refinancings of Indebtedness to the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds of any equity securities issued or capital contributions received extent permitted by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment;Section 6.01; and
(iv) (A) mandatory prepayments by the Borrower payment of secured Indebtedness that becomes due as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to the obligors thereunder than the Senior Initial Loan Agreement in effect on the Closing Date, (B) mandatory prepayments by Holdings as required under the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (C) mandatory prepayments by the Borrower as required under the Additional Borrower Unsecured Senior Notes so long as the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those in the Senior Note Indenture on the First Amendment Effective Date;
(v) partial redemption or prepayment by Holdings a result of the Holdco Initial Loan Facility voluntary sale or transfer of the property or assets securing such Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(vi) any repayment, purchase, redemption, repurchase, defeasance such sale or other acquisition or retirement transfer is permitted by the terms of any Indebtedness constituting Senior Initial Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.01;
(vii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Holdco Initial Loan Facility Indebtedness (including, without limitation, Holdco Initial Loans and any Holdco Notes) made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance with Sections 6.01 and 6.03; and
(viii) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Indebtedness of the Borrower incurred in compliance with Section 6.016.05.
Appears in 1 contract
Samples: Credit Agreement (Arotech Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor or will it permit any Subsidiary of it to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that
Payment other than (i) Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings under this clause (i) shall be used only (A)(x) to pay general corporate overhead and similar expenses incurred by Holdings in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of HoldingsPermitted Dividends, (yii) to pay franchise taxes and other feesPermitted Dispositions, taxes and expenses required to maintain the corporate existence of Holdings and (z) to pay taxes that are due and payable by Holdings as the parent of a consolidated group that includes Holdings and its Subsidiaries (including Unrestricted Subsidiaries); (Biii) so long as (1x) no Event of Default has occurred Amendment No. 7 to Credit Agreement of AAUSA, dated as of June 20, 2008, amending the SOF Agreement, among American Apparel (USA), LLC, the Facility Guarantors, and SOF AMENDMENT NO. 7, OF AMERICAN APPAREL (USA), LLC and is continuing or would arise therefrom continuing, and (2y) there is a minimum amount of $20,000,000 available to the Borrower is not prohibited Loan 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 Senior Initial Existing First Lien Credit Agreement subsequent to any such repurchase, repurchases of the Loan Facility or the ABL Facility from making such payments to Holdings, to make payments in connection with the repurchase of Parties’ Capital Stock of Holdings or any Subsidiary of it (including payments of principal and interest in respect of notes issued by Holdings an amount not to stockholders in connection therewith), provided that such payments are otherwise permitted under this SECTION 6.06; (C) so long as (1) no Event of Default under SECTION 7.01(a), SECTION 7.01(b) (but only with respect to clause (i) thereof as it relates to non-payment of interest), SECTION 7.01(h) or SECTION 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Initial Loan Facility or the ABL Facility from making such payments to Holdings, to pay interest as and when due in respect of the Holdco Initial Loan Facility Indebtedness; and (D) to partially redeem or prepay Holdco Initial Loan Facility Indebtedness to the extent necessary to make an AHYDO “catch-up” payment thereon;
(ii) The Loan Parties and their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments on the Closing Date to consummate the VH Acquisition;
(iv) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(v) The Loan Parties and their Subsidiaries may make Restricted Payments constituting repurchases of Capital Stock of Holdings or any Subsidiary of it in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (v) shall not exceed $5,000,000 in any Fiscal Year of the Borrower;
(vi) Holdings may make Restricted Payments constituting other repurchases of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, 30,000,000 in the aggregate with any payments made pursuant to clause the proceeds of the Loan Parties’ cash on hand (viior cash equivalents) below, shall not exceed $3,000,000 in any Fiscal Year (and provided further that (A) contained in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06SPAC Blocked Account, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from without the prior Fiscal Year pursuant to clause (A) above and, second, in respect written consent of amounts permitted for such Fiscal Year as provided above the Administrative Agent and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year);
(vii) Holdings may make payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of Holdings or any Subsidiary of it, provided that such payments, in the aggregate with any payments made pursuant to clause (vi) above, shall not exceed $3,000,000 in any Fiscal Year, (and provided further that, (A) in the event the entire $3,000,000 is not utilized in any Fiscal Year under clauses (vi) and (vii) of this SECTION 6.06, one hundred percent (100%) of such unutilized portion may be carried forward to the next succeeding Fiscal Year of Holdings, (B) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (A) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (C) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (A) above shall be calculated without taking into account any amounts carried over to such prior Fiscal Year; and
(viii) so long as no Event of Default shall have occurred and be continuing, the Loan Parties and their Subsidiaries may in each Fiscal Year make Restricted Payments in an aggregate amount, without duplication, not exceeding the amount set forth below for such Fiscal Year: 2007 $ 1,000,000 2008 $ 5,000,000 2009 $ 10,000,000 2010 $ 15,000,000 2011 $ 20,000,000 2012 $ 20,000,000 2013 $ 20,000,000 ; provided, that (a) to the extent the capacity to make Restricted Payments pursuant to this clause (vi) for any Fiscal Year exceeds the aggregate amount of Restricted Payments made during such Fiscal Year, such excess capacity may be carried over to the next succeeding Fiscal Year, (b) Restricted Payments made pursuant to this clause during any Fiscal Year shall be deemed made, first, in respect of amounts carried over from the prior Fiscal Year pursuant to clause (a) above and, second, in respect of amounts permitted for such Fiscal Year as provided above and (c) the amount of excess capacity that may be carried over from a prior Fiscal Year pursuant to clause (a) above shall be calculated without taking into account any amounts carried over to such prior Fiscal YearRequired Lenders.
(b) No Loan Party will, nor or will it permit any Subsidiary of it to, 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 Specified Indebtedness of the type described in clause (a)(i), clause (a)(ii), clause (a)(iii) or, with respect to the types of Specified Indebtedness described in clauses (a)(i), (a)(ii) and (a)(iii), clause (b) of the definition of Specified 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 such Specified Indebtedness, except:
(i) payments in Capital Stock (as so long as no Change in Control would result therefrom) and payments Event of interest in-kind of the Loan Parties and their Subsidiaries;
(ii) (A) scheduled payments of principal and interest as and when due and (B) as long as no Specified Default then exists or would arise therefrom, (x) mandatory payments and prepayments of interest and principal as and when due in whole or respect of any Permitted Indebtedness, and (y) prepayments of principal not to exceed $1,000,000 in part any twelve-month period, in each case in respect of any Permitted Indebtedness (other than Subordinated Indebtedness, Senior Debt and the Indebtedness described in clauses (n) and (o) of the Senior Initial Loan Facility definition of “Permitted Indebtedness, Additional Borrower Unsecured Senior Notes and the Holdco Initial Loan Facility ”);
(ii) payments on account of Indebtedness in a principal amount not exceeding $10,000,000 in the aggregate in any Fiscal Year and not exceeding $25,000,000 in the aggregate since outstanding as of the Closing DateDate and as set forth on Schedule 6.01;
(iii) prepayment payments on account of Subordinated Indebtedness to the extent permitted under any subordination agreement or 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 whole or an amount not to exceed $5,000,000 (other than the Indebtedness described in part clauses (n) and (o) of the Senior Initial Loan Facility, Additional Borrower Unsecured Senior Notes, the Holdco Initial Loan Facility or the Term Loan Financing Facility with the proceeds definition of any equity securities issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment“Permitted Indebtedness”);
(iv) refinancing of any Permitted Indebtedness (Aother than Indebtedness described in clauses (n) mandatory prepayments by and (o) of the Borrower as required under the Senior Initial Loan Agreement as in effect on the Closing Date or any Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture, so long as such Senior Initial Loan Agreement, Senior Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable definition of “Permitted Indebtedness”) to the obligors thereunder than extent that (x) the Senior Initial Loan Agreement 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 effect on no event shall such increased principal amount exceed 102% of the Closing Dateprincipal amount of the Indebtedness so refinanced, (By) mandatory prepayments by Holdings as required under such refinancing is on terms and conditions reasonably acceptable to the Holdco Initial Loan Agreement as in effect on the Closing Date or any Holdco Initial Loan AgreementAdministrative Agent, Holdco Note Indenture or supplemental indenture, so long as such Holdco Initial Loan Agreement, Holdco Note Indenture or supplemental indenture contains terms regarding mandatory prepayments no less favorable to Holdings than the Holdco Initial Loan Agreement in effect on the Closing Date and (Cz) mandatory prepayments by the Borrower as required under refinancing lender enters into an intercreditor agreement with the Additional Borrower Unsecured Senior Notes so long as Administrative Agent on terms and conditions that the terms thereof regarding mandatory prepayments are no less favorable to the Borrower than those Agents, in the Senior Note Indenture on the First Amendment Effective Datetheir sole discretion exercised in good faith, deem necessary or desirable;
(v) partial redemption payments as and when due pursuant to the Canadian Loan Agreement or prepayment prepayments under the Canadian Loan Agreement; provided that Amendment No. 7 to Credit Agreement of AAUSA, dated as of June 20, 2008, amending the SOF Agreement, among American Apparel (USA), LLC, the Facility Guarantors, and SOF AMENDMENT NO. 7, OF AMERICAN APPAREL (USA), LLC (x) such payments shall be made only by Holdings a Canadian Subsidiary, and (y) no Loan Party may transfer proceeds of the Holdco Initial Loan Facility Indebtedness Loans to the extent necessary to make an AHYDO “catch-up” payment thereon;any Canadian Subsidiary for purposes of making such payments; and
(vi) any repaymentprepayments of principal on the US Dov Promissory Note or the CN Dov Promissory Note to the extent such prepayments are permitted by the Canadian Lender; provided that (x) such prepayments shall be made only by a Canadian Subsidiary, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Senior Initial and (y) no Loan Facility Indebtedness (including, without limitation, Senior Initial Loans and any Senior Notes) made by exchange for, or out of the Party may transfer proceeds of the substantially concurrent issuance or sale of, Indebtedness Loans to any Canadian Subsidiary for purposes of making such prepayments.”
(ii) Section 6.09 (Restricted Agreements) of the Borrower incurred Credit Agreement is hereby amended by deleting the last sentence and replacing it with the following: “Notwithstanding anything in compliance this SECTION 6.09 to the contrary, neither (i)(a) the prohibition on the pledge of security interest in the Capital Stock of the Canadian Subsidiaries, nor (b) the prohibition on the granting of any guaranty or security interest by the Canadian Subsidiaries, in each case set forth in the Canadian Loan, nor (ii) the prohibitions, restrictions and impositions of conditions expressly set forth in the Merger Agreement and Lim Option Agreements (to the extent such prohibitions, restrictions and impositions of conditions are in connection with the consummation of the merger or the transactions related thereto as expressly set forth in the Merger Agreement and would not result in a Material Adverse Effect) shall be prohibited by this SECTION 6.09.”
(iii) Section 6.016.11 (Financial Covenants) of the Credit Agreement is hereby amended as follows:
(A) Section 6.11(a) (Consolidated Fixed Charge Coverage Ratio) is hereby deleted in its entirety;
(viiB) any repaymentSection 6.11(b) (Minimum Consolidated EBITDA) is hereby deleted in its entirety and replaced with the following: “Minimum Consolidated EBITDA. The Parent shall maintain, purchasefor the twelve month period ended on the last day of each month set forth below, redemptionConsolidated EBITDA for the twelve months ending on such day of not less than the amount set forth opposite such month: TWELVE MONTHS ENDING June 30, repurchase2007 July 31, defeasance or other acquisition or retirement 2007 August 31, 2007 September 30, 2007 October 31, 2007 November 30, 2007 December 31, 2007 January 31, 2008 February 29, 2008 MINIMUM CONSOLIDATED EBITDA $21,500,000 $21,500,000 $21,500,000 $24,500,000 $24,500,000 $24,500,000 $29,500,000 $29,500,000 $29,500,000 Amendment No. 7 to Credit Agreement of any Indebtedness constituting Holdco Initial Loan AAUSA, dated as of June 20, 2008, amending the SOF Agreement, among American Apparel (USA), LLC, the Facility Indebtedness Guarantors, and SOF AMENDMENT NO. 7, OF AMERICAN APPAREL (includingUSA), without limitationLLC TWELVE MONTHS ENDING March 31, Holdco Initial Loans 2008 April 30, 2008 May 31, 2008 June 30, 2008 July 31, 2008 August 31, 2008 September 30, 2008 October 31, 2008 November 30, 2008 December 31, 2008 and any Holdco Notesthereafter MINIMUM CONSOLIDATED EBITDA $30,500,000 $30,500,000 $35,500,000 $37,500,000 $37,500,000 $37,500,000 $39,500,000 $39,500,000 $39,500,000 $41,500,000”
(C) made Section 6.11(c) (Maximum Senior Debt to Consolidated EBITDA) is hereby amended by exchange for, or out of deleting the proceeds of term “Borrower” in the substantially concurrent issuance or sale of, Indebtedness of Holdings incurred in compliance first sentence thereof and replacing it with Sections 6.01 and 6.03the term “Parent”; and
(viiiD) any repayment, purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Indebtedness constituting Additional Borrower Unsecured Senior Notes made Section 6.11(d) (Total Adjusted Debt to Consolidated EBITDAR) is hereby amended by exchange for, or out deleting the term “Borrower” in the first sentence thereof and replacing it with the term “Parent”.
(iv) Section 6.12 (Capital Expenditures) of the proceeds Credit Agreement is hereby amended by deleting clause (b) thereof in its entirety and replacing it with the following: “(b) in excess of $50,000,000 in the substantially concurrent issuance or sale ofaggregate for the Fiscal Year ending December 31, Indebtedness of the Borrower incurred in compliance with Section 6.012008 and for any Fiscal Year thereafter.”
Appears in 1 contract
