Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except: (i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock; (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock; (iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries; (iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10; (v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing; (vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste Unless either the Leverage Test or the Ratings Test shall be satisfied at such time and would remain satisfied after giving effect to such payment or distribution, the Borrower will not, nor and will it not permit any of its Restricted 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:
except (i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
, (iiiii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, so long as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has shall have occurred and be continuing at the time of such payment and no Default would occur as a result of making such payment, (A) the Borrower may make Restricted Payments to the extent that the aggregate amount of all such Restricted Payments in the current fiscal quarter, taken together with the aggregate amount of all such Restricted Payments in respect of such Restricted Payments in the three fiscal quarters immediately preceding such fiscal quarter, is then continuingnot in excess of $100,000,000 plus 25% of Adjusted Consolidated Net Income for the four fiscal quarter period ending most recently prior to the time any such Restricted Payment is made and (B) the Borrower may pay regular dividends or distributions in respect of preferred stock issued after the date hereof, and (iii) notwithstanding the limitation in subsection (ii) above, so long as no Default or Event of Default shall have occurred and be continuing at the time of a repurchase and no Default or Event of Default would occur as a result of making that repurchase, the Borrower may repurchase its capital stock to the extent that the aggregate amount since August 4, 2004, of all such payments in respect of such repurchases shall not exceed $500,000,000, in addition to any repurchases allowed under subsection (ii) above. For purposes of clause (ii) above, “Adjusted Consolidated Net Income” for any period shall mean the sum, without duplication, for such period of Consolidated Net Income plus any special one-time or extraordinary non-cash charges deducted in calculating such Consolidated Net Income.
(b) Unless either the Leverage Test or the Ratings Test shall be satisfied at such time and would remain satisfied upon making such payment or distribution, the Borrower will not, and will not permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest payments and scheduled or mandatory principal payments as and when due in respect of any Indebtedness, other than payments in respect of subordinated debt prohibited by the subordination provisions thereof, and payments made to the Borrower or any Subsidiary by Securitization Entities in respect of subordinated Indebtedness incurred pursuant to any Securitization;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) repayments of Indebtedness of acquired Persons or businesses in connection with and substantially simultaneously with the consummation of Permitted Acquisitions or Permitted Other Acquisitions;
(v) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(vi) the Borrower conversion of 5% Convertible Subordinated Notes issued by Amerisource Health Corporation (now known as AmerisourceBergen Services Corporation) due December 1, 2007 to, or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use exchange of such dividends to pay cash dividends on the Sponsor Preferred Stock; providedNotes for, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction common stock of the following additional conditions on Borrower, or the date redemption of such dividend payment Notes for cash pursuant to a notice of redemption given at a time when no Default or Event of Default shall have occurred and after giving effect thereto:be continuing (or would occur as a result of the redemption of all such Notes for cash).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
: (i) Allied Waste the Borrower and its Restricted Subsidiaries may declare and pay dividends with respect to its capital stock Equity Interests payable solely in additional shares of its capital stock;
Equity Interests; (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
Equity Interests; (iii) Allied Waste may make to the extent constituting Restricted Payments, not exceeding an the Borrower and its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.05 or 6.09; (iv) repurchases by Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Equity Interests; (v) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Borrower or any of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (v) in any fiscal year does not exceed (x) $25,000,000 during 3,000,000 (the "Yearly Limit") plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to the Effective Date) which was not expended by Borrower for Restricted Payments in such fiscal years (the "Carryover Amount" and in calculating the Carryover Amount for any fiscal year, pursuant the Yearly Limit applicable to 119 and the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in accordance with such fiscal year) plus (z) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year; (vi) the repurchase of Equity Interests of the Borrower that occurs upon the cashless exercise of stock option plans options, warrants or other benefit plans convertible securities as a result of the Borrower accepting such options or warrants as satisfaction of the exercise price of such Equity Interests; (vii) the Borrower and its Subsidiaries may make any Restricted Payment in connection with incentive the Bluegrass Acquisition as contemplated by the Purchase Agreement; (viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes; (ix) the Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(ix) after the date hereof and (B) the aggregate amount of all Investments made by the Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or compensation arrangements for current result therefrom; and (x) the Borrower may make additional Restricted Payments; provided that (A) no Default shall exist or former management or employees result therefrom and (B) if the Pro Forma Leverage Ratio is greater than 2.25 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed (A) 25% of the Consolidated Net Income of the Borrower and its Restricted SubsidiariesSubsidiaries for the immediately preceding fiscal year (which year shall not be earlier than the 2010 fiscal year) minus (B) the amount of Investments made pursuant to Section 6.04(y)(ii) during such fiscal year (which amount shall not be less than zero).
(b) The Borrower will not, nor will it permit any Restricted Subsidiary to, make any payment, directly or indirectly, in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of the Senior Unsecured Debt, or any other payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of the Senior Unsecured Debt or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) refinancings of the Senior Unsecured Debt to the extent permitted by Section 6.01;
(ii) (A) any payment or other distribution in respect of principal or interest on, or payment or other distribution on account of the purchase, redemption, retirement, acquisition, cancellation or termination of, the Senior Unsecured Debt, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests and so long as no Change of Control would result therefrom) of the Borrower, or (B) the conversion of any Senior Unsecured Debt to Equity Interests (other than Disqualified Equity Interests).
(iii) on or after July 1, 2011, payments or other distributions in respect of the purchase, redemption, retirement, acquisition, cancellation or termination of, the Senior Unsecured Debt, in an aggregate amount not to exceed $10,000,000; provided that (x) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom and (y) at the time of such payment or other distribution and after giving effect thereto and to any borrowing in connection therewith, the Borrower is in compliance, on a pro forma basis, with the covenants set out in Sections 7.01 and 7.02;
(iv) on or after July 1, 2011, payments or other distributions in respect of principal or interest on, or payment or other distribution on account of the Borrower purchase, redemption, retirement, acquisition, cancellation or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely termination of, the Senior Unsecured Debt, to the extent necessary for Allied Waste the Pro Forma Leverage Ratio is less than 2.50 to pay for taxes 1.00 and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends has delivered to Allied Waste in an aggregate cumulative amount the Administrative Agent a certificate of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on a Financial Officer, together with all relevant financial information reasonably requested by the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance Administrative Agent demonstrating compliance with this clause (viv)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount . CREDIT AGREEMENT, Page 77 Notwithstanding the foregoing, the making of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default any dividend, payment or Event other distribution or the consummation of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on irrevocable redemption within 60 days after the date of declaration of such dividend dividend, payment and after or other distribution or giving effect thereto:of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Loan Parties will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste the Loan Parties may declare and pay dividends with respect to its capital stock payable solely in additional shares their equity interests to any Loan Party which is a Subsidiary of its capital stockany of the Borrowers whether or not a Default or Event of Default exists;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid long as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred exists and is then continuing, the Loan Parties may make distributions to the Lead Borrower to the extent necessary to pay indemnities, accounting, legal and other professional fees, and other similar general and administrative expenses incurred by the Lead Borrower for itself and the Loan Parties;
(iii) the Loan Parties may make distributions to the Lead Borrower to the extent necessary to pay corporate taxes incurred by the Lead Borrower for itself and the Loan Parties; and
(iv) on or after the Exit Facility Date, the Lead Borrower may repurchase its outstanding common stock in an aggregate amount not to exceed $25,000,000, PROVIDED THAT no Default or Event of Default shall exist or shall result after giving effect thereto and FURTHER PROVIDED THAT (A) Excess Availability (after satisfaction of the requirements set forth in Section 7.11 herein) shall be in an amount greater than or equal to $50,000,000 both before and after giving effect thereto, (B) the Lead Borrower delivers to the Agents an officers' certificate which certifies that the Lead Borrower is solvent both before and after giving effect thereto, and (C) the Fixed Charge Coverage Ratio for the period of four (4) consecutive fiscal quarters most recently ended prior to any such repurchase is greater than 1.10 to 1.00.
(b) The Loan Parties will not, and will not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash securities or other property) of or in respect of principal of or interest on any 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 Indebtedness, except:
(i) payments due from time to time hereunder;
(ii) prior to the Exit Facility Date, actions required to be made pursuant to an order of the Bankruptcy Court for adequate protection pursuant to the Bankruptcy Code;
(iii) prior to the Exit Facility Date, payment of pre-petition claims authorized by the First Day Orders or other orders entered in the Reorganization Cases, in each case to which the Agents have consented;
(iv) payment of the Indebtedness of the Borrowers incurred in connection with the Existing Credit Agreement;
(v) payments contemplated by the Bankruptcy Plan;
(vi) the Borrower or payments of regularly scheduled interest and principal as and when due in respect of any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock Indebtedness permitted under Section 7.1; and
(including on shares theretofore paid as dividends thereon in accordance with clause (vvii) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject prior to the satisfaction Exit Facility Date, payment of reclamation claims authorized by the following additional conditions on First Day Orders or other orders entered in the date of such dividend payment Reorganization Cases and after giving effect thereto:to which the Agents have consented.
Appears in 1 contract
Samples: Debt Agreement (Footstar Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Loan Parties will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(i) as long as no Default or incur Event of Default exist or would arise therefrom the Loan Parties may declare and pay Permitted Dividends; and
(ii) if the Payment Conditions are satisfied at the time of the proposed redemption the Parent may redeem its Capital Stock, provided that the Loan Parties shall have provided ten (10) days prior written notice to the Administrative Agent of any obligation proposed redemption after the aggregate redemptions during any twelve month period exceed $500,000.
(contingent b) The Loan Parties will not, and will not permit any Subsidiary to, make or otherwiseagree to pay or make, directly or indirectly, any payment or other distribution (whether in cash securities or other property) to do soof or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid long as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingcontinuing or would result from such payments or distribution:
(A) payment of regularly scheduled interest and principal payments as and when due in respect of any other Indebtedness permitted hereunder; and
(B) refinancings of Indebtedness to the extent permitted by Section 6.01.
(ii) repayment, redemption or repurchase of Indebtedness evidenced by the Senior Subordinated Notes and Senior Subordinated Note Documents provided that, the Payment Conditions are met; (x) immediately prior to such payment and (y) on a proforma basis determined as if such payment occurred on the first day of the thirteen (13) Fiscal Periods ended on the last day of the most recent Fiscal Period for which the Borrowers were required to deliver financial reports pursuant to Section 5.01(b) hereof;
(iii) repayment in full of Permitted Indebtedness, in the aggregate amount not to exceed $5,000,000.00 during any twelve (12) month period , provided that immediately before and after giving effect to such repayment the Payment Conditions are satisfied;
(iv) the repayment in full of Permitted Indebtedness, other than Indebtedness evidenced by the Senior Subordinated Notes and Senior Subordinated Note Documents, in the aggregate amount greater than $5,000,000.00 during any twelve (12) month period provided that, (a) the Payment Conditions are satisfied immediately prior to such payment and (b) the Administrative Agent determines in its reasonable discretion that the Payment Conditions shall be met on a pro forma basis for the thirteen (13) Fiscal Periods immediately following the proposed payment based upon projections provided by the Lead Borrower to the Administrative Agent which projections give effect to the proposed payment;
(v) payments in connection with the termination of the SERP; and
(vi) payments in respect of the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon Senior Credit Facility Obligations in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Intercreditor Agreement.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste the Borrower or any Restricted Subsidiary may declare and pay Restricted Payments with respect to its Equity Interests payable solely in additional shares or units of its Equity Interests;
(ii) Subsidiaries may declare and pay Restricted Payments ratably with respect to their Equity Interests and may make Restricted Payments to the Borrower or any Restricted Subsidiaries;
(iii) Subsidiaries may declare and pay dividends with respect or make distributions (including pursuant to its capital stock payable solely in additional shares of its capital stock;
(iia tax sharing agreement or similar arrangement) Restricted Subsidiaries of to the extent necessary to permit the Borrower may declare and or any other Loan Party to pay any federal, state, local or foreign Taxes of a consolidated, combined, unitary or similar Tax group of which Borrower is the common parent to the extent such dividends ratably with respect to their capital stock;
(iii) Allied Waste may make Restricted Payments, or distributions do not exceeding an aggregate exceed the amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Subsidiaries would have paid as a stand-alone group; provided that payments with respect to any Taxes attributable to any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted SubsidiariesSubsidiaries for the purposes of paying such Taxes;
(iv) the Borrower or any Restricted Subsidiary may declare make Restricted Payments if (A) on a Pro Forma Basis after giving effect to such Restricted Payment, the Total Leverage Ratio does not exceed 2.75:1.00 and make dividend payments to Allied Waste solely to (B) at the extent necessary for Allied Waste to pay for taxes time of such Restricted Payment no Event of Default shall have occurred and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10be continuing;
(v) Allied Waste may declare so long as no Event of Default has occurred and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (is continuing or other capital stock, as provided therein) and at any time after June 30, 2004would result therefrom, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste make Restricted Payments in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount not to exceed the greater of (A) $75,000,000 on 25,000,000 and (B) 1.25% of Consolidated Total Assets of the Borrower (measured as of the date such Sponsor Preferred Stock; provided in each case that no Default Restricted Payment is made based upon the financial statements most recently delivered pursuant to Section 5.01(a) or Event of Default has occurred and is then continuingSection 5.01(b));
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends make Restricted Payments in aggregate amount not to Allied Waste in order exceed the Available Amount at such time if (A) on a Pro Forma Basis after giving effect to permit Allied Waste such Restricted Payment, the Total Leverage Ratio does not exceed 3.50:1.00 and (B) at the time of such Restricted Payment no Event of Default shall have occurred and be continuing;
(vii) the Borrower or any Restricted Subsidiary may make Restricted Payments to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the Borrower held by any future, present or former employee, director, manager or consultant of the Borrower, any of its Subsidiaries, or their estates or the beneficiaries of such estates, pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement; provided that the aggregate Restricted Payments made under this clause (vii) do not exceed in any calendar year $5,000,000 (with unused amounts in any fiscal year being carried over to succeeding fiscal years and net of any proceeds received by Holdings and contributed to the Borrower after the Effective Date in connection with resales of any common stock or common stock options purchased pursuant to this clause (vii)) plus all net cash dividends proceeds obtained from any key-man life insurance policies received by the Borrower after the Effective Date;
(viii) the Borrower may convert Equity Interests of the Borrower into other Equity Interests of the Borrower and in connection therewith may make distributions to its holders in lieu of issuing any fractional Equity Interests;
(ix) to the extent constituting Restricted Payments, the Borrower and its Restricted Subsidiaries may make Investments or consummate transactions permitted by Section 6.01, Section 6.03 or Section 6.04, respectively and may consummate the Transactions;
(x) the Borrower and its Restricted Subsidiaries may make the payment of any dividend or distribution on account of Equity Interests or the consummation of any redemption within 60 days after the date of declaration of the dividend or distribution on account of Equity Interests or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend, distribution or redemption payment would have complied with the provisions of this Section 6.07; and
(xi) the Borrower and its Restricted Subsidiaries may repurchase Equity Interests deemed to occur upon the exercise of stock options, warrants, convertible notes or similar rights to the extent such Equity Interests represent a portion of the exercise price of those stock options, warrants or similar rights or the payment of related withholding taxes.
(b) No Loan Party will, nor will it permit any Restricted Subsidiary to, make any prepayment of or in respect of principal of any Indebtedness for borrowed money, including any sinking fund or similar deposit, on account of the early repurchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness for borrowed money (other than any intercompany Indebtedness owed to or by the Borrower or any Restricted Subsidiary) that (i) by its terms is subordinated in right of payment to the Term Loan Obligations, (ii) secured on a junior lien basis by Liens on the Sponsor Preferred Stock Collateral (including on shares theretofore paid excluding for the avoidance of doubt, the ABL obligations), or (iii) unsecured except:
(i) payment of regularly scheduled interest and principal payments as dividends thereon and when due in accordance respect of any Indebtedness;
(ii) Refinancings to the extent permitted by Section 6.01;
(iii) payments of secured Indebtedness that becomes due as a result of an Event of Loss or the sale or transfer of the property or assets securing such Indebtedness;
(iv) payments made in connection with clause the consummation of the Transactions;
(v) hereofso long as no Event of Default has occurred and is continuing or would result therefrom, other payments not exceeding in the aggregate the greater of (A) $25,000,000 and Allied Waste may use (B) 1.25% of Consolidated Total Assets of the Borrower (measured as of the date such dividends payment is made based upon the financial statements most recently delivered pursuant to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause Section 5.01(a) or Section 5.01(b));
(vi) are subject the Borrower or any Restricted Subsidiary may make payments in respect of Indebtedness in an aggregate amount not to exceed the satisfaction of the following additional conditions Available Amount at such time if (A) on the date of such dividend payment and a Pro Forma Basis after giving effect thereto:to such payment of Indebtedness, the Total Leverage Ratio does not exceed 3.50:1.00 and (B) at the time of such payment of Indebtedness no Event of Default shall have occurred and be continuing;
(vii) any payment of Indebtedness incurred in reliance on Section 6.01(n)) if such Indebtedness is issued into escrow pending completion of any such Permitted Acquisition or Investment, in connection with the termination of escrow and redemption of such Indebtedness pursuant to the terms thereof; and
(viii) payments made by converting or exchanging any such Indebtedness to Equity Interests of the Borrower or any of its Parent Entities.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste No Loan Party will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that:
(i) Any Loan Party or incur any obligation 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 BCF Holdings or Parent under this clause (contingent or otherwisei) shall be used (w) to do sopay general corporate and overhead expenses incurred by BCF Holdings or Parent in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of BCF Holdings or Parent, (x) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of BCF Holdings or Parent, (y) to pay taxes that are due and payable by BCF Holdings as the parent of a consolidated group that includes Parent and its Subsidiaries, and (z) so long as (1) no Event of Default under SECTIONS 7.01(a), 7.01(b), 7.01(h) or 7.01(i) has occurred and is continuing or would arise therefrom and (2) the Borrower is not prohibited under the Senior Notes Indenture or the ABL Facility from making payments to Parent for the payment of interest due in respect of the Holdco Notes, to pay interest as and when due in respect of the Holdco Notes to the extent required under the Holdco Indenture as in effect on the Closing Date or any supplemental indenture relating to the increase in the principal amount of Holdco Notes as permitted by clause (h) of the definition of Permitted Indebtedness, so long as such supplemental indenture contains the same terms as the Holdco Indenture in effect on the Closing Date;
(ii) The Loan Parties 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 may make Restricted Payments on the Closing Date to consummate the BCFWC Acquisition;
(iv) The Loan Parties may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof; and
(v) The Loan Parties may make Restricted Payments constituting repurchases of equity interests in BCF Holdings or any Subsidiary 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 $2,000,000 in any Fiscal Year of BCF Holdings.
(b) No Loan Party will 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 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 Indebtedness, except:
(i) Allied Waste may declare payments in Capital Stock (as long as no Change in Control would result therefrom) and pay dividends with respect to its capital stock payable solely in additional shares payments of its capital stockinterest in-kind of the Loan Parties;
(ii) Restricted Subsidiaries payments of the Borrower may declare and pay dividends ratably with regularly scheduled interest in respect of any Subordinated Indebtedness (subject to their capital stockapplicable subordination provisions relating thereto);
(iii) Allied Waste may make Restricted Paymentspayments of principal (including mandatory prepayments) and interest as and when due in respect of any Permitted Indebtedness (other than Subordinated Indebtedness) and, not exceeding an aggregate in the case of Holdco Notes, as required under the Holdco Indenture as in effect on the Closing Date or any supplemental indenture relating to the increase in the principal amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees Holdco Notes as permitted by clause (h) of the Borrower and its Restricted Subsidiariesdefinition of Permitted Indebtedness, so long as such supplemental indenture contains the same terms as the Holdco Indenture in effect on the Closing Date;
(iv) prepayment in whole or in part of the Borrower Senior Notes with the proceeds of any equity securities (other than Permitted Cure Securities) issued or capital contributions received by any Loan Party or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to for the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10purpose of making such payment or prepayment;
(v) Allied Waste may declare and pay dividends prepayment in respect whole or in part of the Sponsor Preferred Stock payable solely in additional shares Senior Notes or the Holdco Notes from any refinancing of Sponsor Preferred Stock (the Senior Notes or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of Holdco Notes not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingprohibited hereunder;
(vi) prepayment in whole or in part of the ABL Facility;
(vii) as long as no Specified Default then exists or would arise therefrom, payments of interest only on account of Permitted Indebtedness due to the Sponsors or Sponsor Related Parties, stockholders and/or Affiliates (subject to applicable subordination provisions relating thereto);
(viii) payments of principal and interest in respect of notes issued to stockholders in connection with the repurchase of shares of Capital Stock of BCF Holdings, provided that such payments shall not exceed $3,000,000 in any Fiscal Year, provided that, in the event the entire $3,000,000 is not utilized in any Fiscal Year, one hundred percent (100%) of such unutilized portion may be carried forward to succeeding Fiscal Years of BCF Holdings; and
(ix) refinancings of Indebtedness to the extent permitted under this Agreement.
(c) At any time that (i) an Event of Default under SECTIONS 7.01(a), 7.01(b), 7.01(h) or 7.01(i) has occurred and is continuing or would arise therefrom, (ii) the Borrower is prohibited under the Senior Notes Indenture from making payments to Parent for the payment of interest due in respect of the Holdco Notes, or any Restricted Subsidiary may pay cash dividends (iii) the Borrower is prohibited under the ABL Facility from making payments to Allied Waste Parent for the payment of interest due in order to permit Allied Waste respect of the Holdco Notes, no Loan Party will make or agree to pay cash dividends on the Sponsor Preferred Stock or make any payment or other distribution or disposition (whether in cash, securities or other property) to BCF Holdings or Parent (including on shares theretofore paid as dividends thereon in accordance with pursuant to (i) clause (vf) hereofof the definition of “Permitted Disposition”, (ii) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vig) are subject to the satisfaction of the following additional conditions on definition of “Permitted Investments” or (iii) Section 6.06(a)(i)), if the date proceeds of such dividend payment and after giving effect thereto:payment, distribution or disposition are or will be used to make payments of interest in respect of the Holdco Notes.
Appears in 1 contract
Samples: Credit Agreement (COHOES FASHIONS of CRANSTON, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Holdings may declare and pay dividends with respect to its capital common or preferred stock payable solely in additional shares of its capital common or preferred stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) so long as the Distribution Conditions have been satisfied (as determined by the Administrative Agent in its reasonable discretion) at the time of, and with respect to, any Restricted Payment not otherwise permitted by the foregoing clauses (i) through (iv), the Borrower may make such Restricted Payment to Holdings and Holdings may make such Restricted Payment to holders of Equity Interests in Holdings so long as (1) the aggregate amount of Restricted Payments made pursuant to this clause (v) after the Effective Date does not exceed the sum of (x) $20,000,000 plus (y) the amount of any such Restricted Payments made at such time as the Additional Distribution Conditions have been satisfied, and (2) such Restricted Payment is made only with the proceeds of cash on hand of the Loan Parties and not with the proceeds of Loans, (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party; and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) Restricted Subsidiaries payment of the Borrower may declare regularly scheduled interest and pay dividends ratably with principal payments as and when due in respect to their capital stockof any Indebtedness;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount refinancings of $25,000,000 during any fiscal year, pursuant Indebtedness to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiariesextent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Potbelly Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted 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:
(i) Allied Waste each Subsidiary of the Borrower may declare make Restricted Payments to the Borrower, and pay dividends with respect to its capital stock payable solely in additional shares any Subsidiaries of its capital stockthe Borrower that are Guarantors;
(ii) Restricted Subsidiaries each Non-Guarantor Subsidiary of the Borrower may declare and pay dividends ratably with respect make Restricted Payments to their capital stockany Excluded Subsidiary of the Borrower;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted each other Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(iv) payments by Borrower to Allied Waste solely to repurchase or redeem qualified capital stock of the extent necessary Borrower held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of Borrower or any of its Subsidiaries, upon their death, disability, retirement, severance or termination of employment or service; provided, that the aggregate cash consideration paid for Allied Waste to pay for taxes all such redemptions and to pay administrative expenses to conduct its business repurchases shall not exceed, in accordance with Sections 5.01(b) and 6.10any Fiscal Year, $5,000,000;
(v) Allied Waste may declare if at the time thereof and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time immediately after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that giving effect thereto no Default or Event of Default has shall have occurred and is then continuingbe continuing or would result therefrom, the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those options, warrants or other similar rights, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of options, warrants or similar rights; provided that the aggregate cash consideration paid for all such repurchases, redemptions or acquisitions shall not exceed, in any Fiscal Year, $3,000,000;
(vi) MediaMind and its Subsidiaries may directly or indirectly repurchase stock options pursuant to Section 3.05(a) of the Merger Agreement in respect of the Equity Interests of MediaMind existing on or prior to the Effective Date in an aggregate amount not to exceed $70,000,000, with the proceeds of the MediaMind Intercompany Notes pursuant to the Recharge Agreement;
(vii) the Borrower and its Subsidiaries may make Permitted Restricted Payments; and
(viii) Restricted Payments in an aggregate amount not to exceed the Permitted Corporate Basket Amount;
(b) The Borrower will not, nor will it permit any of the Subsidiaries to, prepay, redeem, purchase, defease or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject otherwise satisfy prior to the satisfaction scheduled maturity thereof in any manner, or make any payment in violation of any subordination agreements with respect to, or subordination terms of, any Indebtedness, except:
(i) prepayments of Indebtedness arising under the following additional conditions on Loan Documents;
(ii) prepayments of Indebtedness owed to any Loan Party; and
(iii) if at the date of such dividend payment time thereof and immediately after giving effect thereto:thereto no Default or Event of Default shall have occurred and be continuing or would result therefrom, prepayments of Indebtedness permitted under Section 6.01.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste Each Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste FCX may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital common stock;
, (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
, (iii) Allied Waste FCX may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 5,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower FCX and its Restricted Subsidiaries;
, (iv) so long as no Default shall have occurred and be continuing, PTFI may pay dividends to FCX at such times and in such amounts as shall be necessary to permit FCX to discharge its operating expenses incurred in the Borrower or ordinary course of business and its permitted liabilities (other than any liability in respect of a Restricted Subsidiary may declare and make dividend payments Payment not permitted to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(bbe made by FCX hereunder) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, so long as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has shall have occurred and is then be continuing;
(vi) the Borrower or any Restricted Subsidiary , FCX may pay cash regularly scheduled quarterly dividends in respect of its preferred stock and effect regularly scheduled mandatory redemptions of its preferred stock, in each case, to Allied Waste the extent and in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use amounts required by the prospectus under which such dividends to pay cash dividends on the Sponsor Preferred Stockpreferred stock was issued; provided, however, that all cash dividend no Restricted Payments may be made in respect of preferred stock after July 31, 2003, if a Qualifying Gold Preferred Restructuring has not been consummated by such date.
(b) Each Borrower will not, nor will it permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities (other than common stock of FCX) or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities (other than common stock of FCX) or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in accordance with this clause respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01(a);
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) the purchase of 2026 Senior Notes as a result of a put of such 2026 Senior Notes by the holders thereof in November 2003;
(vi) are subject prepayments of Indebtedness made with Discretionary Funds;
(vii) the purchase by FCX of the PTMI Loan Rights pursuant to the satisfaction Put Agreement and this Agreement; and
(viii) prepayments of Indebtedness owed to either Borrower by the following additional conditions on other Borrower or a Restricted Subsidiary or owed to a Restricted Subsidiary by another Restricted Subsidiary, provided that prepayments of Indebtedness owed to a Restricted Subsidiary that is not a Loan Party shall be permitted only to the date extent no Default has occurred and is continuing at the time of such dividend prepayment.
(c) Each Borrower will not, and will not permit any Restricted Subsidiary to, enter into or be party to, or make any payment and after giving effect thereto:under, any Synthetic Purchase Agreement.
Appears in 1 contract
Samples: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Holdings may declare and pay dividends with respect to its capital common stock payable solely in additional shares of its capital common stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably , and, with respect to their capital its preferred stock;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock such preferred stock or in shares of its common stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) so long as the Distribution Conditions have been satisfied (as determined by the Administrative Agent in its reasonable discretion) at the time of, and with respect to, any Restricted Payment not otherwise permitted by the foregoing clauses (i) through (iv), the Borrower may make such Restricted Payment to Holdings and Holdings may make such Restricted Payment to holders of Equity Interests in Holdings in an aggregate amount not to exceed (x) $20,000,000 in any trailing twelve month period ending on the date such Restricted Payment is made, or (y) $40,000,000 after the date hereof, (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issuance of new common Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party; and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other capital stockdistribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as provided thereinand when due in respect of any Indebtedness;
(iii) and at refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any time case, after June 30giving effect to any such repayment, 2004reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:other Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Potbelly Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary 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:
(i) Allied Waste the Borrower may declare and pay dividends with respect to its capital stock Qualified Equity payable solely in additional shares of its capital stockQualified Equity, and, with respect to its Disqualified Equity, payable solely in additional shares of such Disqualified Equity (to the extent permitted to be incurred under Section 6.01) or in shares of its Qualified Equity;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stockQualified Equity;
(iii) Allied Waste consistent with past practice, Loan Parties may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower or any of its Subsidiaries; and
(iv) to the extent approved by the board of directors of the Borrower, the Borrower may declare and pay cash dividends with respect to its Equity Interests so long as no Event of Default shall have occurred and be continuing or shall result therefrom after giving pro forma effect thereto; provided, that if such cash dividends are funded with Indebtedness permitted hereunder, the Borrower shall be in compliance with the financial covenants set forth in Section 6.12 both before and immediately after giving effect (including giving effect on a pro forma basis) to the payment of such dividends and the incurrence of such Indebtedness; provided that, notwithstanding the foregoing, in no event shall this Section 6.08 permit the distribution (whether in a single transaction or a series of transactions) of any intellectual property that is material to the business of the Borrower and its Restricted SubsidiariesSubsidiaries (taken as a whole) to any Person other than a Loan Party or a wholly-owned Subsidiary; provided that the Borrower and its Subsidiaries may grant non-exclusive licenses of any intellectual property to any Subsidiary that is not a Loan Party in the ordinary course of business so long as the Borrower or such Subsidiary retains the beneficial ownership and the same rights to use such intellectual property as held prior to such license.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted under Section 6.01, other than (x) payments in respect of Subordinated Indebtedness prohibited by the subordination provisions thereof and (y) payments in respect of Permitted Convertible Notes;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the Borrower voluntary sale or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely transfer of the property or assets securing such Indebtedness to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;such sale or transfer is permitted by the terms of Section 6.05; and
(v) Allied Waste with respect to any Permitted Convertible Notes, (x) the Borrower shall be permitted to make regularly scheduled non-default interest, coupon payments or additional interest expressly required by the terms thereof, (y) the Borrower may declare and pay dividends in respect convert or exchange such Permitted Convertible Notes for any Equity Interests of the Sponsor Preferred Stock payable solely Borrower (together with cash in additional shares lieu of Sponsor Preferred Stock (any fractional interest in any unit of such Equity Interests) pursuant to the terms of such Permitted Convertible Notes, or, to the extent it would not result in the occurrence of a default thereunder or other capital stockan Event of Default hereunder, as provided therein) and at any time after June 30, 2004, a price that is more favorable to the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount than the price dictated by the terms of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on such Permitted Convertible Notes, and (z) so long as at the Sponsor Preferred Stock time thereof and immediately after giving effect (including on shares theretofore paid as dividends thereon in accordance with this clause a pro forma basis) thereto (v)1) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred exists or would result therefrom, (2) the Senior Net Leverage Ratio (on a pro forma basis) is not greater than 3.25 to 1.00 and is then continuing;
(vi3) the Borrower is in compliance with the financial covenants set forth in Section 6.12, the Borrower may repurchase, retire, redeem, acquire, cancel, terminate or any Restricted Subsidiary may pay defease such Permitted Convertible Notes pursuant to its terms (including, without limitation, the payment of cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on lieu of stock for the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance principal amount and/or conversion premium associated with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; providedPermitted Convertible Notes, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date upon conversion of such dividend payment and after giving effect thereto:Permitted Convertible Notes) in an aggregate principal amount not to exceed the original principal amount thereof, plus interest; provided that the Borrower shall not use the proceeds of any Loans for any payment, repurchase, retirement, redemption, acquisition, cancellation, termination or defeasance in respect of Permitted Convertible Notes (other than the Existing Convertible Notes) permitted under this Section 6.08(b)(v).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste No Loan Party will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (ia) Allied Waste the Borrower and Parent may declare and pay dividends with respect to its capital common stock payable solely in additional shares of its capital common stock;
, (iib) Restricted so long as no Default exists or would arise as a result thereof, Subsidiaries of the Borrower may declare and pay dividends ratably with respect to the holders of their capital stock;
Equity Interests, (iiic) Allied Waste the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Subsidiaries, (d) so long as no Default exists or would arise as a result thereof, the Parent may make other Restricted Subsidiaries;
Payments with respect to (ivi) the Borrower Parent’s common stock and (ii) repurchases, redemptions or other buybacks of Parent’s common stock, in an aggregate amount not to exceed $10,000,000 during any Restricted Subsidiary may declare fiscal year; provided, that, with respect to each of clauses (a) through (d) above, such Person and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct Persons holding its business Equity Interests are in accordance compliance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect Section 7-80-606 of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock Colorado Revised Statutes, (e) so long as no Default exists or other capital stock, would arise as provided therein) and at any time after June 30, 2004a result thereof, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste the Parent in an amount sufficient to allow the Parent to pay (i) reasonable audit and other accounting expenses incurred in the ordinary course of business, (ii) Taxes due and payable by the Parent to any taxing authority and reasonable expenses incurred in connection with preparation of related Tax returns and filings, (iii) reasonable and necessary expenses (including professional fees and expenses) incurred by the Parent in connection with (A) registration, public offerings and exchange listing of equity securities and maintenance of the same, (B) compliance with reporting obligations under, or in connection with compliance with, federal or state securities laws, and (C) indemnification and reimbursement of directors, officers and employees in respect of liabilities relating to their serving in any such capacity, or obligations in respect of director and officer insurance (including premiums therefor), (iv) Restricted Payments with respect to (A) the Parent’s common stock and (B) repurchases, redemptions or other buybacks of Parent’s common stock pursuant to clause (d) above in an aggregate cumulative amount of not more than to exceed $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause 10,000,000 during any fiscal year, and (v)) other reasonable expenses incurred by Parent in the ordinary course of business, and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that (f) so long as no Default exists or Event of Default has occurred and is then continuing;
would arise as a result therefrom, (vii) the Borrower or any Restricted Subsidiary may pay make cash dividends to Allied Waste the Parent in order an amount sufficient to permit Allied Waste allow the Parent to pay cash dividends on make the Sponsor Preferred Stock Permitted Dividend Payment and (including on shares theretofore paid as dividends thereon in accordance with clause (vii) hereof) and Allied Waste the Parent may use such dividends to pay cash dividends on make the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Permitted Dividend Payment.
Appears in 1 contract
Samples: Credit Agreement (Natural Grocers by Vitamin Cottage, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Borrower may declare and pay dividends with respect to its capital common stock or Qualified Preferred Stock payable solely in additional shares of its capital stock;
common stock or Qualified Preferred Stock, or make cash payments in lieu of fractional shares, (ii) Restricted Subsidiaries of (other than those directly owned, in whole or part, by the Borrower Borrower) may declare and pay dividends ratably with respect to their capital common stock;
, (iii) Allied Waste the Borrower may make declare and pay cash dividends with respect to its common stock and effect repurchases, redemptions or other Restricted PaymentsPayments with respect to its common stock, not exceeding together in an aggregate amount of $25,000,000 during in any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees year of the Borrower not to exceed 50% of Consolidated Net Income (if positive) for the immediately preceding fiscal year of the Borrower; provided that immediately prior and its Restricted Subsidiaries;
after giving effect to any such payment no Default or Event of Default shall have occurred and be continuing and, immediately after giving effect to any such payment, the Borrower shall have Revolver Availability of more than $100,000,000, (iv) the Borrower may pay cash dividends in an amount not to exceed $60,000,000 in any fiscal year of the Borrower with respect to any Qualified Preferred Stock; provided that (x) immediately prior and after giving effect to any such payment, no Default or any Restricted Subsidiary may declare Event of Default shall have occurred and make dividend payments to Allied Waste solely be continuing and (y) only so long as a Financial Covenant Effectiveness Period is then occurring, the Consolidated Fixed Charge Coverage Ratio for the period of four consecutive fiscal quarters most recently ended on or prior to the extent necessary date of such payment, calculated on a pro forma basis as if such payment were made on the last day of such period (and excluding any such payments previously made pursuant to this clause during such four quarter period but attributed for Allied Waste purposes of this calculation to pay for taxes and the last day of a prior period which day does not occur in such four quarter period) is not less than the ratio applicable to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
such period of four fiscal quarters under Section 6.12, (v) Allied Waste the Borrower and the Subsidiaries may make Restricted Payments consisting of the repurchase or other acquisition of shares of, or options to purchase shares of, capital stock of the Borrower or any of its Subsidiaries from employees, former employees, directors or former directors of the Borrower or any Subsidiary (or their permitted transferees), in each case pursuant to stock option plans, stock plans, employment agreements or other employee benefit plans approved by the board of directors of the Borrower; provided that no Default has occurred and is continuing; and provided further that the aggregate amount of such Restricted Payments made after the Original Restatement Effective Date shall not exceed $10,000,000, (vi) the Subsidiaries may declare and pay cash dividends in respect to the Borrower; provided that the Borrower shall, within a reasonable time following receipt of any such payment, use all of the Sponsor Preferred Stock payable solely proceeds thereof for a purpose set forth in additional shares Section 5.10(b) or a Refinancing Amendment (including the payment of Sponsor Preferred Stock dividends required or permitted pursuant to this Section 6.08(a)), (or other capital stock, as provided thereinvii) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary and the Subsidiaries may declare and pay cash dividends with respect to Allied Waste the Equity Interests set forth on Schedule 6.08(a) to the extent, and only to the extent, required pursuant to the terms of such Equity Interests or any other agreement in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends effect on the Sponsor Preferred Stock Effective Date and (including on shares theretofore paid viii) so long as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingcontinuing or would result therefrom, the Borrower may redeem or repurchase shares of the Borrower’s and/or its Subsidiaries’ (including Rite Aid Lease Management Company’s) Preferred Stock (A) solely with Net Cash Proceeds received by the Borrower from issuances of its common stock after the Original Restatement Effective Date, provided that any such repurchase or redemption is effected within 150 days after the receipt of such proceeds or (B) with other funds available to the Borrower if, immediately after giving effect to any such redemption or repurchase, the Borrower shall have Revolver Availability of more than $100,000,000.
(b) The Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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 Indebtedness (which, for purposes of this Section 6.08(b), shall include any Indebtedness, including the Borrower’s 8.5% Convertible Notes due May 2015, incurred pursuant to any of clauses (i) through (xx) of Section 6.01(a)), except:
(i) payments or prepayments or exchanges of Indebtedness (including Refinancing Indebtedness) created under the Senior Loan Documents (including any Refinancing Amendment executed in accordance with Section 6.01(c)) and prepayments, repurchases or redemptions of Additional Senior Debt made in accordance with Section 2.11(c);
(ii) payments of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted pursuant to Section 6.01(a);
(iii) prepayments of Indebtedness permitted pursuant to clause (vii), (viii) or (ix) of Section 6.01(a) with the proceeds of, or in exchange for, Indebtedness permitted pursuant to clause (vii), (viii) or (ix) of Section 6.01(a), respectively;
(iv) payments of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) provided no Default has occurred and is continuing or would result therefrom, Optional Debt Repurchases of Inside Indebtedness and, to the extent permitted by paragraph (c) of this Section, Optional Debt Repurchases of Outside Indebtedness;
(vi) repurchases, exchanges or redemptions of Indebtedness for consideration consisting solely of common stock of the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Qualified Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay or cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance lieu of fractional shares;
(vii) prepayments of Capital Lease Obligations in connection with this clause the sale, closing or relocation of Stores;
(viviii) are subject prepayments and exchanges of Indebtedness in connection with the incurrence of Refinancing Indebtedness permitted pursuant to Section 6.01(a)(ii) or (x);
(ix) prepayments of Indebtedness permitted pursuant to Section 6.01(a)(iii), if permitted by the satisfaction subordination provisions applicable to such Indebtedness; and
(x) unless an Event of Default shall have occurred and be continuing, mandatory prepayments of Indebtedness and interest under the following additional conditions on New Notes.
(c) The Borrower and the date Subsidiaries will not effect Optional Debt Repurchases of such dividend payment Outside Indebtedness unless immediately prior and after giving effect thereto:to any such Optional Debt Repurchases, (x) no Default or Event of Default shall have occurred and be continuing and (y) the Borrower shall have Revolver Availability of more than $100,000,000.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste FCX will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock (A) to shareholders other than FCX, (B) to FCX to the extent the proceeds of such dividends are applied to pay operating expenses in the ordinary course of business, and (C) to FCX so long as (1) no Event of Default under clause (a) or (b) of Article VII shall have occurred and be continuing and (2) if any Event of Default other than under clause (a) or (b) of Article VII shall have occurred and be continuing (or shall result from the payment thereof), so long as the Required Lenders shall not have given notice to FCX that such dividends shall not be permitted to be paid during the pendency of such Event of Default,
(ii) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), FCX may pay regularly scheduled quarterly dividends in respect of its preferred stock issued and outstanding on the Effective Date and effect regularly scheduled mandatory redemptions of its preferred stock issued and outstanding on the Effective Date, in each case, to the extent and in the amounts required by the terms of such preferred stock as in effect on the Effective Date,
(iii) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), FCX may, consistent with its dividend practices as of the Effective Date, and subject to the Incurrence Test, declare and pay dividends on its shares of common stock (and on shares of common stock issued upon the conversion of or in exchange for shares of FCX’s 5½% Convertible Perpetual Preferred Stock outstanding on the Effective Date) in an amount in respect of any fiscal quarter not to exceed $0.3125 per share of FCX’s common stock (adjusted as applicable to eliminate the effect of stock dividends, stock splits, reverse stock splits and other transactions in respect of such shares of common stock, and payable in respect of any shares of common stock received pursuant to any such stock dividend, stock split, reverse stock split or other transaction) (it being understood that Restricted Payments made in reliance on this clause (iii) in respect of shares of FCX’s common stock issued or sold after the Effective Date (or in respect of shares received in stock dividends, stock splits, reverse stock splits or other transactions in respect of such shares of common stock) involving either (x) a receipt of cash proceeds that increased the Restricted Uses Basket or (y) the receipt of assets in consideration for such common stock shall constitute Restricted Uses and shall reduce the Restricted Uses Basket (which reduction may be to less than zero)), and
(iv) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), and subject to the Incurrence Test, FCX may make Restricted Payments in cash in any amounts to the extent that, immediately after giving effect thereto (and to any expenditure of cash required thereby), the Restricted Uses would not be greater than the Restricted Uses Basket.
(b) Each Borrower will not, and will not permit any Restricted Subsidiary to, make, directly or indirectly, any voluntary payment or other voluntary distribution (whether in cash, securities (other than common stock of FCX) or other property) of, or in respect of, principal of or interest on any Indebtedness, or any voluntary payment or other voluntary distribution (whether in cash, securities (other than common stock of FCX) or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents and payment of Ratable FCX Obligations, Ratable Cyprus Obligations and Ratable PD Obligations;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of Indebtedness prohibited by the subordination provisions thereof;
(iii) Allied Waste may make Restricted Paymentsrefinancings of Indebtedness to the extent permitted by Section 6.01(a) (including, not exceeding an aggregate amount without limitation, the refinancing of $25,000,000 during any fiscal yearIndebtedness, pursuant to 119 and in accordance other than the Senior Notes, with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted SubsidiariesIndebtedness permitted under Section 6.01(a)(xi));
(iv) payment of secured Indebtedness that becomes due as a result of the Borrower sale or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to transfer of the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10property or assets securing such Indebtedness;
(v) Allied Waste may declare and pay dividends in respect prepayments of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Indebtedness owed to FCX by a Restricted Subsidiary may pay cash dividends or owed to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stocka Restricted Subsidiary by FCX or another Restricted Subsidiary; provided in each case that prepayments of Indebtedness owed to a Restricted Subsidiary that is not a PCA Loan Party shall be permitted only to the extent no Default or Event of Default has occurred and is then continuingcontinuing at the time of such prepayment, except that such prepayments shall be permitted (A) to the extent the proceeds of such prepayments are applied to pay operating expenses or to make Capital Expenditures in the ordinary course of business, and (B) to the extent the proceeds of such prepayments are applied to pay scheduled debt service of such Restricted Subsidiary so long as (1) no Event of Default under clause (a) or (b) of Article VII shall have occurred and be continuing and (2) if any Event of Default other than under clause (a) or (b) of Article VII shall have occurred and be continuing (or shall result from the payment thereof), so long as the Required Lenders shall not have given notice to FCX that such prepayments shall not be permitted to be paid during the pendency of such Event of Default;
(vi) prepayments of any Project Financing to the Borrower or any Restricted extent made by the applicable Project Financing Subsidiary may pay with cash dividends from the operations of such Project Financing Subsidiary;
(vii) payments of Indebtedness (other than Indebtedness referred to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (vviii) hereofbelow) that are not permitted by clauses (i)-(vi) of this Section 6.08(b) if and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and extent that after giving effect thereto:to any such payments, the Restricted Uses would not be greater than the Restricted Uses Basket; and
(viii) payments of Indebtedness created under the Parent Credit Agreement and the “Loan Documents” thereunder.
Appears in 1 contract
Samples: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNone of the Holding Companies or the Borrowers will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Subsidiaries may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends or make distributions ratably with respect to their capital stock;
stock or membership interests, (iiiii) Allied Waste the BC Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 5,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the BC Borrower and the BC Subsidiaries, (iii) the BC Borrower and the Timber Borrower may make distributions to BC Holdings and Timber Holdings, respectively, at such times and in such amounts, not exceeding $5,000,000 during any fiscal year, as shall be necessary to permit each of BC Holdings and Timber Holdings to discharge its Restricted Subsidiariespermitted liabilities, (iv) if at the time thereof and after giving effect thereto no Default has occurred and is continuing, the Timber Borrower may distribute to Timber Holdings, and Timber Holdings may distribute, any Excess Timber Consideration (excluding any Excess Timber Consideration consisting of cash that is transferred to or invested in BC Holdings, the BC Borrower or any BC Subsidiary for the purpose of funding any redemption or repurchase of Senior Unsecured Debt or Subordinated Debt pursuant to clause (v) of paragraph (b) of this Section), (v) each Holding Company may redeem the Equity Interests of such Holding Company, and may make distributions to FPH so that FPH may make such redemptions of Equity Interests of FPH, in each case from former members of management, former employees, or former directors of Loan Parties, and each Borrower may make distributions to its Holding Company as necessary to fund such redemptions, PROVIDED that the aggregate amount applied for all such purposes shall not exceed $3,000,000 during any fiscal year, (vi) the Holding Companies and the Borrowers may pay (by distribution or otherwise) management fees to Madison Dearborn of up to $1,000,000 in the aggregate in any fiscal year, (vii) distributions by the Borrowers to the Holding Companies to pay out-of-pocket expenses for directors' indemnities, (viii) the Timber Borrower may distribute to Timber Holdings, and Timber Holdings may distribute, any amount of the Net Proceeds received in respect of a Timberland Prepayment Event that is required to be used to prepay Tranche B Term Borrowings pursuant to Section 2.11, PROVIDED that (A) the amount so distributed is immediately reinvested in BC Holdings, and invested by BC Holdings in the BC Borrower and thereupon promptly used for such purpose and (B) such distribution and reinvestment is made pursuant to procedures satisfactory to the Administrative Agent, (ix) the Timber Borrower may distribute to Timber Holdings, and Timber Holdings may distribute, any Equity Interests of BC Holdings acquired by the Timber Borrower or any Timber Subsidiary pursuant to clause (xiv) of Section 6.04(b), (x) each Borrower may make distributions to the Holding Companies, and each Holding Company may in turn make distributions to FPH, (A) not exceeding $500,000 in the aggregate during any fiscal year, at such times as shall be necessary to permit FPH to discharge its corporate maintenance obligations and (B) not exceeding $500,000 in the aggregate during any fiscal year, at such times as shall be necessary to permit FPH to discharge its obligations related to its portion of common expenses shared with any of the Holding Companies or the Borrowers, (xi) each Borrower may make distributions to the Holding Companies, and each Holding Company may in turn make distributions to FPH, to permit FPH to pay on the Effective Date one-time fees and out-of pocket expenses incurred in connection with the Acquisition consistent with the use of proceeds approved by the Lenders prior to the Effective Date and (xii) for so long as BC Holdings is a pass-through or disregarded entity for United States Federal income tax purposes, the BC Borrower may make distributions to BC Holdings, and BC Holdings shall in turn be permitted, to make Tax Distributions in respect of any taxable year of BC Holdings equal to the product of (A) the amount of taxable income allocated to the Members for such taxable year, less the amount of taxable loss allocated to the Members for all prior taxable years (except to the extent such taxable losses have previously been taken into account under this provision), times (B) the highest aggregate marginal statutory Federal, state and local income tax rate (determined taking into account the deductibility of state and local income taxes for Federal income tax purposes) to which any of the direct or indirect Members of BC Holdings who is an individual is subject for such year; and BC Holdings shall be permitted to make such Tax Distributions pursuant to this clause (xii) on a quarterly basis during such taxable year based on the best estimate of the chief financial officer of BC Holdings of the amounts specified in clauses (A) and (B) above; PROVIDED that if the aggregate amount of the estimated Tax Distributions made in any taxable year of BC Holdings exceeds the actual maximum amount of Tax Distributions for that year as finally determined, the amount of any Tax Distributions in the succeeding taxable year (or, if necessary, any subsequent taxable years) shall be reduced by the amount of such excess.
(b) None of the Holding Companies or the Borrowers will, nor will either Borrower permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the Borrower voluntary sale or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to transfer or involuntary condemnation of the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;property or assets securing such Indebtedness; and
(v) Allied Waste may declare if at the time thereof and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that giving effect thereto no Default or Event of Default has occurred and is then continuing;
, the BC Borrower may redeem or repurchase Senior Unsecured Debt or Subordinated Debt for cash consideration; PROVIDED that (viA) at the time of and after giving effect to any such redemption or repurchase, the aggregate amount applied for such purposes shall not exceed the aggregate amount of Excess Timber Consideration consisting of cash that has been transferred to or invested in BC Holdings, the BC Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on and the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments BC Subsidiaries in accordance with this clause Agreement for the purpose of funding such redemptions and repurchases, (viB) are subject any Senior Unsecured Debt or Subordinated Debt so redeemed or repurchased shall be retired and cancelled and (C) the BC Borrower shall notify the Administrative Agent of any such redemption or repurchase, setting forth the amount applied for such purpose and a description of the method of funding such redemption or repurchase, prior to the satisfaction of the following additional conditions on the date time of such dividend payment and after giving effect thereto:redemption or repurchase.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Parent nor the Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste Parent may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital common stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste the Borrower may make Restricted Paymentspay dividends to Parent at such times and in such amounts equal to the amounts required for Parent to pay taxes, not exceeding an aggregate amount franchise fees and other fees required to maintain its corporate existence and provide for other operating costs of up to $25,000,000 7,500,000 during any fiscal year, pursuant to 119 and year (other than liabilities in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees respect of the Borrower and its Restricted SubsidiariesParent Discount Debentures);
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments pay dividends to Allied Waste solely Parent in amounts equal to the extent amounts necessary for Allied Waste Parent to pay for taxes and make loans or advances to pay administrative expenses to conduct its employees in the ordinary course of business in accordance with Sections 5.01(b) and 6.10past practices of the Borrower, but in any event not to exceed, when aggregated with amounts loaned or advanced under Section 6.04(i), $5,000,000 in the aggregate outstanding at any one time;
(v) Allied Waste may declare and pay dividends in respect any purchase, repurchase, retirement, defeasance or other acquisition or retirement for value of Equity Interests of Parent made by exchange for, or out of the Sponsor Preferred proceeds of the substantially concurrent sale of, Equity Interests of Parent (other than Disqualified Stock payable solely in additional shares of Sponsor Preferred Stock (and other than Equity Interests issued or sold to the Borrower or a Subsidiary or an employee stock ownership plan or other capital stock, as provided therein) and at any time after June 30, 2004, trust established by the Borrower or any Restricted Subsidiary of the Subsidiaries);
(vi) the Borrower may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; during any fiscal year, provided in each case that no Default or Event of Default has occurred and is then continuingcontinuing or will occur as a result of such payment and to the extent permitted by the Subordinated Debt Documents and the New Senior Debt Documents as in effect on the date hereof, pay dividends to Parent when and to the extent necessary (or to the extent (A) Parent is permitted by the terms of this Agreement and the Parent Discount Indenture to make a cash interest payment in respect of the Parent Discount Debentures and (B) Parent uses such dividends (net of any Taxes payable by Parent in respect of such dividends) to make such cash interest payment) to fund payments of interest accrued during such year on the Parent Discount Debentures;
(vii) the Borrower may make to Parent, and Parent may make to its shareholders, Restricted Payments in an aggregate amount (without duplication) not to exceed the Permitted Distribution Amount, PROVIDED that (A) any Restricted Payment made by Parent and the Borrower pursuant to this clause (vii) shall reduce, on a dollar-for-dollar basis, the amount of the Permitted Distribution Amount available for payments pursuant to clause (viii) of Section 6.08(b), (B) prior to any Restricted Payment pursuant to this clause (vii), the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer of the Borrower certifying that (1) no Default has occurred and is continuing or would result from such Restricted Payment and (2) such Restricted Payment will be made with cash and Cash Equivalents on the balance sheet of the Borrower without giving effect to any Revolving Borrowings and (C) any dividend made by Parent to its shareholders pursuant to this clause (vii) must be made to its shareholders ratably in accordance with their equity ownership; and
(viii) the Borrower may make to Parent, and Parent may make to its shareholders, Restricted Payments in an aggregate amount (without duplication) not to exceed 50% of the Excess Cash Flow of the Borrower during the period (treated as one account period) commencing at the end of the fiscal quarter in which the Effective Date occurs and ending at the end of the most recent fiscal period for which financial statements have been provided to the Lenders pursuant to Section 5.01(a) or (b) of this Agreement, PROVIDED that (A) any Restricted Payment made pursuant to this clause (x) shall reduce, on a dollar-for-dollar basis, the amount available for payments pursuant to clause (ix) of Section 6.08(b), (B) prior to any Restricted Payment pursuant to this clause (x), the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer of the Borrower certifying as to the matters set forth in clauses (B)(1) and (2) of the PROVISO in clause (vii) of this Section 6.08(a) and (C) any dividend made by Parent to its shareholders pursuant to this clause (viii) must be made to such shareholders ratably in accordance with their equity ownership.
(b) Neither Parent nor the Borrower will, nor will they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of (A) regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Senior Subordinated Notes prohibited by the subordination provisions thereof and (B) in any fiscal year, interest accrued during such fiscal year in respect of the Parent Discount Debentures;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) payment of Indebtedness of the Borrower and the Subsidiaries existing on the Effective Date and set forth in Schedule 6.01;
(vi) payment to any Person of Indebtedness of the Borrower or any Restricted Subsidiary may pay cash dividends (other than a License Subsidiary) that is incurred to Allied Waste in order finance the purchase of equipment or other fixed assets and is secured by such equipment or other fixed assets, PROVIDED that (A) the aggregate amount of all payments made pursuant to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject does not exceed (1) $2,500,000 during any fiscal year of the Borrower and (2) $5,000,000 during the term of this Agreement and (B) all such payments shall be made using existing cash of the Borrower or any Subsidiary (other than a License Subsidiary);
(vii) payment of the ACS Media Holdings Notes described in clause (a) of the definition of the term "ACS Media Transaction";
(viii) payment for the repurchase, redemption, retirement or cancelation of (x) Parent Discount Debentures, (y) Senior Subordinated Notes or (z) New Senior Notes in an aggregate amount not to exceed the Permitted Distribution Amount, PROVIDED that (A) any payment made by Parent or the Borrower pursuant to this clause (viii) shall reduce, on a dollar-for-dollar basis, the amount of the Permitted Distribution Amount available for payments pursuant to clause (vii) of Section 6.08(a) and (B) prior to any payment pursuant to this clause (viii), the Borrower shall deliver to the satisfaction Administrative Agent a certificate of a Financial Officer of the following additional conditions Borrower certifying as to the matters set forth in clauses (B)(1) and (2) of the PROVISO in clause (vii) of Section 6.08(a);
(ix) payment for the repurchase, redemption, retirement or cancelation of (x) Parent Discount Debentures, (y) Senior Subordinated Notes or (z) New Senior Notes in an aggregate amount not to exceed 50% of the Excess Cash Flow of the Borrower during the period (treated as one accounting period) commencing at the end of the fiscal quarter in which the Effective Date occurs and ending at the end of the most recent fiscal period for which financial statements have been provided to the Lenders pursuant to Section 5.01(a) or (b) of this Agreement, PROVIDED that (A) any payment made by Parent or the Borrower pursuant to this clause (ix) shall reduce, on a dollar-for-dollar basis, the amount available for payments pursuant to clause (viii) of Section 6.08(a) and (B) prior to any payment pursuant to this clause (x), the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer of the Borrower certifying as to the matters set forth in clauses (B)(1) and (2) of the PROVISO in clause (vii) of Section 6.08(a); and
(x) payment for the repurchase, redemption, retirement or cancelation of (x) Senior Subordinated Notes or (y) New Senior Notes in an aggregate amount not to exceed $10,000,000, provided that (A) such payment shall be made with cash and Cash Equivalents on the date balance sheet of such dividend payment the Borrower, (B) immediately prior and after giving effect thereto:to any such payment, there shall be no Revolving Borrowings outstanding and (C) prior to any payment made in reliance on this clause (x), the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer of the Borrower certifying as to the matters set forth in clauses (A) and (B) above.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes Taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste and its Restricted Subsidiaries may declare and pay dividends make Restricted Payments to the extent required by the terms of its joint venture or similar agreements in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends effect on the Sponsor Preferred Stock (including Restatement Effective Date and listed on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred StockSchedule 6.08; provided in each case that immediately prior, and after giving effect to, such Restricted Payment, no Default or Event of Default has shall have occurred and is then be continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order an amount sufficient to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) respect of its capital stock and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stockin respect of its capital stock; provided, however, provided that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste each Subsidiary may declare make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and pay dividends with any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect to its capital stock payable solely in additional shares of its capital stockwhich such Restricted Payment is being made;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted each Subsidiary may declare and make dividend payments to Allied Waste or other distributions payable solely to in the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10common stock or other common Equity Interests of such Person;
(viii) Allied Waste the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests; and
(iv) the Borrower may declare and pay cash dividends in with respect of the Sponsor Preferred Stock payable solely in additional to its common stock and purchase, redeem, retire, acquire, cancel or terminate shares of Sponsor Preferred Stock (or other capital its common stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that (A) immediately prior to and immediately after giving effect to any such Restricted Payment, no Default or Event of Default has shall have occurred and is then continuingbe continuing and (B) the aggregate amount of all Restricted Payments made pursuant to this clause (iv) during any Fiscal Year shall not exceed $5,000,000.
(b) The Borrower will not, nor will it permit any of its Subsidiaries to, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Indebtedness, except:
(i) prepayments of Indebtedness created under the Loan Documents;
(viii) the Borrower regularly scheduled or any Restricted Subsidiary may pay cash dividends to Allied Waste required repayments or redemptions of Indebtedness set forth in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock Schedule 6.01; and
(including on shares theretofore paid as dividends thereon in accordance with clause (viii) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject refinancings of Indebtedness to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:extent permitted by Section 6.01.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste each Borrower may declare and pay dividends with respect to its capital stock Equity Interests payable solely in additional shares of its capital stock;
Equity Interests, (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends or other distributions ratably with respect to their capital stock;
Equity Interests, (iii) Allied Waste so long as there exists no Default or Event of Default, the Borrowers may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 2,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock Equity Interest option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower Borrowers and its Restricted their Subsidiaries;
, (iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, so long as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that there exists no Default or Event of Default has and the Company is a "flow through" or "disregarded" entity for United States federal income tax purposes, the Company may pay dividends or make distributions to its members in an aggregate amount not greater than the amount necessary for such members (or, if any such member is a "flow through" or "disregarded" entity for United States federal income tax purposes, the members of such member) to pay their actual state and United States federal, state and local income tax liabilities in respect of income earned by the Borrowers, and (v) the Company shall be permitted to pay dividends and distributions; provided, that such dividends and distribution shall only be permitted if (1) there exists no Default or Event of Default, (2) the Fixed Charge Coverage Ratio for the Borrowers (after giving effect to such dividend and distribution) would 120 not be less than 1.25 to 1 for the most recently completed twelve month period assuming that for purposes of calculating the Fixed Charge Coverage Ratio for such period (calculated on a pro forma basis in a manner acceptable to the Administrative Agent) such dividends and distributions occurred on the first day of such applicable period, and is then continuing(3) immediately after giving effect to the payment of any such dividends and distributions and for the next succeeding twelve month period, Availability will not be less than $40,000,000 on a pro forma basis (calculated in a manner acceptable to the Administrative Agent and assuming all past due accounts payable of the Borrowers have been paid in full in cash at the time of such payment and no accounts payable of the Borrowers are allowed to become past due during such twelve month period thereafter).
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(viii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Borrower Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.1;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on transfer of the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause property or assets securing such Indebtedness; and
(v) hereof) and Allied Waste may use such dividends to pay cash dividends on repayments or repurchases of Senior Notes after the Sponsor Preferred Stockoccurrence of a Qualified Public Offering; provided, however, that all cash dividend payments in accordance with this clause (vi1) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and immediately after giving effect thereto:to such repayment or repurchase and for the next succeeding twelve month period, Availability will not be less than $40,000,000 on a pro forma basis (calculated in a manner acceptable to the Administrative Agent and assuming all past due accounts payable of the Borrowers have been paid in full in cash at the time of such payment and no accounts payable of the Borrowers are allowed to become past due during such twelve month period thereafter), and (2) the Fixed Charge Coverage Ratio for the Borrowers (after giving effect to such repayment or repurchase) would not be less than 1.25 to 1 for the most recently completed twelve month period assuming that for purposes of calculating the Fixed Charge Coverage Ratio for such period (calculated on a pro forma basis in a manner acceptable to the Administrative Agent) such repayment or repurchase occurred on the first day of such applicable period.
Appears in 1 contract
Samples: Credit Agreement (Stewart & Stevenson Funding Corp.)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Holdings nor the Borrower will, nor will it they permit any of its other Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur enter into any obligation (contingent or otherwise) transaction the economic effect of which is substantially similar to do soany Restricted Payment, except:
except (i) Allied Waste Holdings and the Borrower may declare and pay dividends with respect to its their capital stock payable solely in additional shares of its capital their respective common stock;
, (ii) Restricted Subsidiaries of (other than the Borrower Borrower) may declare and pay dividends ratably with respect to their capital stock;
, (iii) Allied Waste Holdings may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 3,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of Holdings and the Borrower and its Restricted Subsidiaries;
; (iv) so long as no Default shall have occurred and be continuing or result from the making of such payment, the Borrower or any Restricted Subsidiary may declare pay dividends to Holdings at such times and make dividend payments in such amounts as shall be necessary to Allied Waste solely permit Holdings to discharge, to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct permitted hereunder, its business in accordance with Sections 5.01(b) and 6.10;
permitted liabilities; (v) Allied Waste on and after the Leverage Target Date, Holdings may declare and pay dividends in cash with respect to its convertible preferred stock outstanding as of the Sponsor Preferred Stock payable solely Amendment No. 4 Effective Date in additional shares of Sponsor Preferred Stock an amount not exceeding 94 $40,000,000 in any fiscal year and the Borrower may declare and pay dividends to Holdings to permit Holdings to declare and pay such dividends and (or other capital stock, as provided thereinvi) and at any time after June 30, 2004the consummation of the Structured Note Financing, the Borrower or any Restricted Subsidiary may declare and pay cash dividends a dividend to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on Holdings so long as (x) the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that dividend shall not exceed the principal amount of the Structured Note Bridge Indebtedness outstanding at the time such dividend is paid plus accrued interest thereon, (y) no Default or Event of Default has occurred and is continuing or would result therefrom and (z) immediately upon receipt thereof, Holdings shall apply all of the proceeds of such dividend to repay in full the Structured Note Bridge Indebtedness then continuing;outstanding.
(vib) Neither Holdings nor the Borrower or will, nor will they permit any Restricted Subsidiary may pay cash dividends to Allied Waste to, make, directly or indirectly, any voluntary payment or other distribution (whether in order to permit Allied Waste to pay cash dividends cash, securities or other property) of or in respect of principal of or interest on the Sponsor Preferred Stock any High Yield Notes, any Qualifying Holdings Debt or any Qualifying Borrower Indebtedness (collectively "Specified Indebtedness"), or any voluntary payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction account of the following additional conditions on purchase, redemption, retirement, acquisition, cancellation or termination of any Specified Indebtedness (or enter into any transaction the date economic effect of such dividend payment which is substantially similar to any of the foregoing), except, provided no Default has occurred and after giving effect thereto:is continuing or would result therefrom, payments of regularly scheduled interest as and when due in respect of any Specified Indebtedness other than Qualifying Borrower Indebtedness.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNone of BC Holdings or the BC Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Subsidiaries may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends or make distributions ratably with respect to their capital stock;
stock or membership interests, (iiiii) Allied Waste the BC Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 5,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the BC Borrower and the Subsidiaries, (iii) the BC Borrower may make distributions to BC Holdings at such times and in such amounts, not exceeding $5,000,000 during any fiscal year, as shall be necessary to permit BC Holdings to discharge its Restricted Subsidiaries;
permitted liabilities, (iv) BC Holdings may redeem its Equity Interests and may make distributions to FPH so that FPH may make such redemptions of Equity Interests of FPH, in each case from former members of management, former employees, or former directors of Loan Parties, and the BC Borrower may make distributions to BC Holdings as necessary to fund such redemptions, PROVIDED that the aggregate amount applied for all such purposes shall not exceed $3,000,000 during any fiscal year, (v) BC Holdings and the BC Borrower may pay (by distribution or otherwise) management fees to Madison Dearborn of up to $1,000,000 in the aggregate in any Restricted Subsidiary fiscal year, (vi) distributions by the BC Borrower to BC Holdings to pay directors' out-of-pocket expenses and indemnification obligations owing to directors, (vii) the BC Borrower may declare make distributions to BC Holdings, and BC Holdings may in turn make dividend payments distributions to Allied Waste solely FPH, (A) not exceeding $500,000 in the aggregate during any fiscal year, at such times as shall be necessary to permit FPH to discharge its corporate maintenance obligations and (B) not exceeding $500,000 in the aggregate during any fiscal year, at such times as shall be necessary to permit FPH to discharge its obligations related to its portion of common expenses shared with BC Holdings or the BC Borrower, (viii) for so long as BC Holdings is a pass-through or disregarded entity for United States Federal income tax purposes, the BC Borrower may make distributions to BC Holdings, and BC Holdings shall in turn be permitted, to make Tax Distributions in respect of any taxable year of BC Holdings equal to the product of (A) the amount of taxable income allocated to the Members for such taxable year, less the amount of taxable loss allocated to the Members for all prior taxable years (except to the extent necessary such taxable losses have previously been taken into account under this provision), times (B) the highest aggregate marginal statutory Federal, state and local income tax rate (determined taking into account the deductibility of state and local income taxes for Allied Waste Federal income tax purposes) to which any of the direct or indirect Members of BC Holdings who is an individual is subject for such year; and BC Holdings shall be permitted to make such Tax Distributions pursuant to this clause (viii) on a quarterly basis during such taxable year based on the best estimate of the chief financial officer of BC Holdings of the amounts specified in clauses (A) and (B) above; PROVIDED that if the aggregate amount of the estimated Tax Distributions made in any taxable year of BC Holdings exceeds the actual maximum amount of Tax Distributions for that year as finally determined, the amount of any Tax Distributions in the succeeding taxable year (or, if necessary, any subsequent taxable years) shall be reduced by the amount of such excess, (ix) after consummation of the Contemplated IPO, the BC Borrower and BC Holdings may declare or make, agree to pay for taxes or make, or incur obligations to make, Restricted Payments in cash; PROVIDED that (A) the aggregate amount of such Restricted Payments under this clause (ix) (including those made by the Holding Companies, the BC Borrower or the Timber Borrower under clause (xiii) of Section 6.08 of the First Restated Credit Agreement) plus the aggregate amount of cash consideration applied pursuant to clause (vii) of Section 6.08(b) shall not exceed the aggregate Net Proceeds received from the Contemplated IPO and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b(B) and 6.10;
all such Restricted Payments under this clause (vix) Allied Waste must be made within 180 days after the date of consummation of the Contemplated IPO, (x) after consummation of the Contemplated IPO, BC Holdings may declare and pay dividends in respect cash, and the BC Borrower may make distributions to BC Holdings to fund such dividends; PROVIDED that (A) at the time of and after giving effect to any such dividend, no Default shall have occurred and be continuing, (B) subject to clause (C) below, at the Sponsor Preferred Stock payable solely in additional shares time of Sponsor Preferred Stock (or other capital stock, as provided therein) and at after giving effect to any time after June 30, 2004such dividend, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 dividends paid in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with reliance upon this clause (v)x) and Allied Waste may use such dividends to pay cash dividends since the First Restatement Effective Date shall not exceeding exceed an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject equal to the satisfaction sum of (1) 50% of the following additional conditions on Consolidated Net Income accrued during the period (treated as one accounting period) from the Original Effective Date to the end of the most recent fiscal quarter ending prior to the date of such dividend payment for which internal financial statements are available (or, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus (2) in the event of the occurrence of a Prepayment Event described in clause (c) of the definition of the term Prepayment Event, an amount equal to 50% of the Net Proceeds from such Prepayment Event and (C) dividends may be paid in reliance upon this clause (x) in an aggregate amount of up to $35,000,000 notwithstanding whether such dividends would be permitted by clause (B) above, but any such dividends paid in reliance upon this clause (C) shall be included in determining whether any dividends may be paid in reliance upon clause (B) above and (xi) after giving effect thereto:consummation of the Contemplated IPO, the BC Borrower may make distributions to BC Holdings, and BC Holdings may in turn make distributions to FPH at such times as shall be necessary to permit FPH to reimburse the expenses of Madison Dearborn incurred in connection with the consummation of the Contemplated IPO, but any such distributions shall be deducted in calculating Net Proceeds from the Contemplated IPO.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Boise Cascade Holdings, L.L.C.)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste No Loan Party will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:except that
(i) Allied Waste Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends with or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings or the Parent under this clause (i) shall be used (w) to pay general corporate and overhead expenses incurred by Holdings or the Parent in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings or the Parent, (x) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings or the Parent, (y) to pay taxes that are due and payable by the Parent as the parent of a consolidated group that includes Parent and its Subsidiaries, and (z) so long as no Event of Default shall have occurred and be continuing under SECTIONS 6.10, 7.01(a), 7.01(b), 7.01(h), or 7.01(i) or would result therefrom, to pay interest as and when due in respect of the Holdco Notes to its capital stock payable solely in additional shares of its capital stockthe extent required under the Holdco Note Documents;
(ii) The Loan Parties may make Restricted Subsidiaries Payments for the purpose of paying amounts owing under the Borrower may declare and pay dividends ratably with respect Advisory Agreement, to their capital stockthe extent permitted under SECTION 6.07;
(iii) Allied Waste The Loan Parties may make Restricted Payments, not exceeding an aggregate amount Payments consisting of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees Permitted Dispositions of the Borrower type described, and its Restricted Subsidiariessubject to the limitations contained, in the definition thereof;
(iv) The Loan Parties may make Restricted Payments constituting repurchases of equity interests in the Borrower Parent or any Subsidiary 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 Subsidiary Payments made pursuant to this clause (v) shall not exceed $2,000,000 in any Fiscal Year of the Parent; and
(v) The Loan Parties may declare make other Restricted Payments if the Payment Conditions are satisfied (provided that, for the purposes of this clause (a)(v), the percentage set forth in the definition of “Pro Forma Availability Condition” shall be 25% and the Fixed Charge Coverage Ratio requirement set forth in the definition of “Payment Conditions” shall be 1.15:1.0).
(b) No Loan Party will make dividend 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 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 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;
(ii) payments of principal and interest in respect of any Subordinated Indebtedness (subject to Allied Waste solely applicable subordination provisions relating thereto);
(iii) (A) payments of principal (including mandatory prepayments) and interest as and when due in respect of any Permitted Indebtedness (other than Subordinated Indebtedness) and (B) as long as the Payment Conditions are satisfied, prepayments of Permitted Indebtedness (other than the Senior Notes, the Holdco Notes, the Term Loan Financing Facility, Indebtedness due to the extent necessary Sponsor or any of its Affiliates (other than Indebtedness due to any of the Loan Parties or their Subsidiaries) or Subordinated Indebtedness);
(iv) prepayment in whole or in part of the Senior Notes, the Holdco Notes, 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 Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10the purpose of making such payment or prepayment;
(v) Allied Waste may declare and pay dividends prepayment in respect whole or in part of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004Senior Notes, the Borrower Holdco Notes, or the Term Loan Financing Facility from any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount refinancing of the Senior Notes, the Holdco Notes, or the Term Loan Financing Facility not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingprohibited hereunder;
(vi) if the Borrower Payment Conditions are satisfied, prepayment in whole or any Restricted Subsidiary may pay cash dividends in part of the Senior Notes or the Holdco Notes;
(vii) if the Term Payment Availability Conditions are satisfied, prepayment in whole or in part of the Term Loan Financing Facility;
(viii) as long as no Specified Default then exists or would arise therefrom, payments of interest only on account of Permitted Indebtedness due to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsors or Sponsor Preferred Stock Related Parties, stockholders and/or Affiliates (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction applicable subordination provisions relating thereto);
(ix) as long as no Specified Default then exists or would arise therefrom, prepayments of the following additional conditions on AHYDO Catch-Up Payment in an aggregate amount not to exceed $25,000,000;
(x) payments either of (A) cash to shareholders, or (B) principal and interest in respect of notes issued to stockholders, in each case, in connection with the date repurchase of shares of Capital Stock of the Parent owned by such shareholder, provided that such payments shall not exceed $5,000,000 in the aggregate in any Fiscal Year, provided that, in the event the entire $5,000,000 is not utilized in any Fiscal Year, one hundred percent (100%) of such dividend payment and after giving effect thereto:unutilized portion may be carried forward to succeeding Fiscal Years of the Parent; and
(xi) refinancings of Indebtedness to the extent permitted under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably (or in a manner more favorable to the Borrower or Subsidiaries) with respect to their capital stock;
(iiiii) Allied Waste the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments pursuant to 119 and in accordance with the stock option plans or other benefit plans for management, employees, directors or consultants (including former employees, directors or consultants) of any Parent, Holdings, the Borrower and its Subsidiaries; provided that the amount thereof does not exceed $1,000,000 in connection with incentive any calendar year;
(iii) the Borrower may pay dividends to Holdings at any time in such amounts as may be necessary to permit Holdings or a Parent to pay its expenses and liabilities incurred in the ordinary course (other than payments in respect of Indebtedness or Restricted Payments), including (A) payment of franchise taxes and other fees required to maintain its corporate existence and (B) to the extent deducted from net income in calculating Consolidated Net Income, to pay for general corporate and overhead expenses (including salaries and other compensation arrangements for current of employees) which are attributable or former management or employees allocable to the ownership and operations of the Borrower and its Restricted the Subsidiaries;
(iv) provided no Event of Default is continuing or would result therefrom, the Borrower or may make Restricted Payments to Holdings with Eligible Equity Proceeds that have not been applied to any other Eligible Equity Proceeds Uses; provided that such Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to Payments are made not later than 90 days after the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10receipt of such Eligible Equity Proceeds by the Borrower;
(v) Allied Waste may declare and pay dividends in respect noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the Sponsor Preferred Stock payable solely in additional shares exercise price of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stockoptions; provided in each case that no Default or Event of Default has occurred and is then continuing;and
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends make Restricted Payments to Allied Waste Holdings (i) in order to permit Allied Waste amounts required for Holdings or a Parent to pay cash dividends federal, state and local income Taxes imposed directly on Holdings or a Parent to the Sponsor Preferred Stock extent such Taxes are attributable to the income of the Borrower and its Subsidiaries (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on including, without limitation, by virtue of Holdings or a Parent being the Sponsor Preferred Stockcommon parent of a consolidated or combined Tax group of which the Borrower and/or its Subsidiaries are members); provided, however, that all cash dividend the amount of any such dividends or distributions (plus any taxes payable directly by the Borrower and its Subsidiaries) shall not exceed the amount of such taxes that would have been payable directly by the Borrower and/or its Subsidiaries had the Borrower been the common parent of a separate tax group that included only the Borrower and its Subsidiaries, (ii) in amounts equal to the amounts required for Holdings or a Parent to pay fees required to maintain its legal existence and (iii) to pay any reasonable fees or expenses related to unsuccessful debt or equity offerings of Holdings or a Parent.
(b) The Borrower will not, and will not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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 Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Senior Subordinated Debt, Permitted Subordinated Indebtedness or other subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) repurchases, repayments, defeasance or other retirement of the Senior Subordinated Notes made with Eligible Equity Proceeds that have not been applied to any other Eligible Equity Proceeds Uses, provided such repurchase or repayment is made within 90 days after receipt of such Eligible Equity Proceeds by the Borrower; and provided that this Section 6.08(b) shall not prohibit cancellation of Indebtedness of the Borrower owing to Holdings in consideration for the issuance of additional common equity of the Borrower to Holdings; and
(vi) payments in the ordinary course of business of principal or interest on any Indebtedness between or among the Borrower and any of its Subsidiaries, provided that such payments are not otherwise prohibited by the terms of any of the Loan Documents.
(c) The Borrower will not, and will not permit any Subsidiary to, furnish any funds to, make any Investment in, or provide other consideration to any other Person (including any Unrestricted Subsidiary) for purposes of enabling such Person to, or otherwise permit any such Person to, make any Restricted Payment or other payment, repurchase, repayment or distribution restricted by this Section or under Section 6.09 that could not be made directly by the Borrower in accordance with the provisions of this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Section.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries to, domestic Subsidiary to declare or makepay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, or agree to pay make any payment on account of, or makeset apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Equity Interests or Subordinated Debt of any Loan Party or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of any Loan Party or any Subsidiary (collectively, “Restricted PaymentPayments”), or incur any obligation (contingent or otherwise) to do so, exceptexcept that:
(ia) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste any domestic Subsidiary may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant Payments to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted wholly owned Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10Guarantor;
(vb) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, so long as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has shall have occurred and is then be continuing, the Borrower may purchase its common stock or common stock options from present or former officers or employees of any Loan Party or any Subsidiary upon the death, disability or termination of employment of such officer or employee, provided, that the aggregate amount of payments under this clause (b) after the date hereof (net of any proceeds received by the Borrower after the date hereof in connection with resales of any common stock or common stock options so purchased) shall not exceed $250,000 in any fiscal year of the Borrower;
(vic) the Borrower may acquire Equity Interests of the Borrower in connection with the exercise of stock options or any Restricted Subsidiary may pay cash dividends to Allied Waste stock appreciation rights by way of cashless exercise or in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance connection with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of withholding tax obligations; and
(d) so long as (i) no Event of Default exists or would result therefrom, (ii) no Default exists or would result therefrom due to compliance with the following additional conditions on Fixed Charge Coverage Ratio set forth in Section 6.17 and (iii) the date Borrower has Availability of such dividend payment and at least $15,000,000 after giving effect thereto:to such dividends, the Borrower may pay dividends to its shareholders.”
Appears in 1 contract
Samples: Credit Agreement (Superior Offshore International Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste No Loan Party will, or will not, nor will it permit any of its Restricted Subsidiaries 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 soso prior to the Tranche C Maturity Date, except:
except (i) Allied Waste Holdings may declare and pay dividends with respect to its capital stock Equity Interests payable solely in additional shares Equity Interests of its capital stock;
Holdings that do not require (or permit the holder of such Equity Interest to require) any payments or other distribution (whether in cash, securities or other property) to the holder of such Equity Interests prior to the Tranche C Maturity Date, (ii) Restricted Subsidiaries Loan Parties (other than Holdings) that are wholly-owned subsidiaries of the Borrower Holdings may declare and pay dividends ratably with respect to their capital stock;
Equity Interests, (iii) Allied Waste provided no Event of Default is occurring or would result therefrom, Restricted Payments to repurchase Equity Interests in Holdings (or any Parent) from retired, deceased or terminated employees or directors (including their Heirs) of any Parent, Holdings or any of its subsidiaries in an amount not to exceed $1,000,000 in any fiscal year and $5,000,000 in the aggregate, (iv) Restricted Payments to repurchase Equity Interests in Holdings (or any Parent) from retired, deceased or terminated employees or directors (including their Heirs) of any Parent, Holdings or any of its subsidiaries, to the extent such Restricted Payments constitute Indebtedness that is not secured and is subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent; provided that no more than $5,000,000 in aggregate principal amount of such Indebtedness may be outstanding at any time, (v) any Restricted Payment made pursuant to the Acquisition Documents, (vi) Restricted Payments to any Parent for the maintenance of its corporate existence and compliance with applicable law or accounting, legal, public relations, investor relations, financial or management activities (including the employment of employees, agents, accountants, consultants, bankers, advisors or other professionals in connection with any of the foregoing) in an amount not to exceed $5,000,000 per year, (vii) any Loan Party may issue Equity Interests that do not require (or permit the holder of such Equity Interest to require) any payments or other distributions (whether in cash, securities or other property) to the holder of such Equity Interests prior to the Tranche C Maturity Date, to the extent such issuance is in connection with a Permitted Acquisition or a transaction permitted by Section 6.05(j), (viii) any Loan Party may make any payments related to an Earnout, (ix) the payments permitted under Section 6.09(d) and (e) shall be permitted to be made, (x) so long as no Event of Default shall have occurred and be continuing or would result therefrom, immediately at or prior to any cash interest payment becoming due on the H-Lines Finance Discount Notes, the Loan Parties may make Restricted Payments, not exceeding Payments to H-Lines Finance in an aggregate amount not to exceed the amount of $25,000,000 during such cash interest payment; provided that the H-Lines Finance Discount Notes shall not have been amended after the issuance thereof to accelerate any fiscal yeardate on which, pursuant or increase the amount of, cash interest payable thereon, (xi) following the consummation of the Specified IPO and so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Loan Parties may make any Restricted Payment if Holdings would have been permitted to 119 make such Restricted Payment under Section 4.11 of the High Yield Indenture (as in effect on the Amendment Effective Date), assuming for the purposes of this Section 6.08(a)(xi) that (i) clauses (a)(3)(b), (a)(3)(c) and (a)(3)(d) and clauses (1) through (17) inclusive of clause (b) were not applicable (except that clauses (2), (3), (4), (6), (7), (9), (14), (15) and (16) of such clause (b) shall be deemed to be applicable for purposes of interpreting the first parenthetical phrase in clause (a)(3)) and (ii) notwithstanding the definition of “Consolidated Net Income” in the High Yield Indenture and to the extent deducted in determining such “Consolidated Net Income”, transaction costs and expenses incurred in connection with the Specified IPO and the other transactions consummated in accordance with the stock option plans or other benefit plans or use of proceeds set forth in the Registration Statement and the amendment and restatement of this Agreement and reasonable and customary transaction costs and expenses incurred in connection with incentive or compensation arrangements for current or former management or employees financing transactions consummated following consummation of the Borrower and its Specified IPO shall, for purposes of this Section 6.08(a)(xi), be excluded from the calculation of “Consolidated Net Income” under the Indenture; provided that no more than an aggregate of $15,000,000 of Restricted Subsidiaries;
Payments may be made pursuant to this Section 6.08(a)(xi) in any consecutive four-quarter period, (ivxii) upon the Borrower or any consummation of the Specified IPO, Restricted Subsidiary may declare and make dividend payments Payments consisting of cash dividends to Allied Waste solely Horizon Lines, Inc. in an aggregate amount not to the extent necessary exceed $40,000,000 for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business application by Horizon Lines, Inc. in accordance with Sections 5.01(bthe use of proceeds set forth in the Registration Statement; (xiii) and 6.10;
(v) Allied Waste may declare and pay dividends in respect following the consummation of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stockSpecified IPO, so long as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
continuing or would result therefrom, Restricted Payments made directly or indirectly to the Public Parent, to the extent used promptly by the Public Parent to effect the purchase, redemption, acquisition, cancellation or other retirement for value of Excess Equity Interests; provided that (via) the Borrower gives written notice to the Administrative Agent at or prior to making any Restricted Subsidiary may pay cash dividends Payment pursuant to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereofthis Section 6.08(a)(xiii) and Allied Waste (b) any such purchase, redemption, acquisition, cancellation or other retirement for value is done solely to maintain compliance with citizenship requirements of applicable Maritime Laws or the Certificate of Incorporation; (xiv) so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Loan Parties may use such dividends make any other Restricted Payments not to pay cash dividends on exceed $1,000,000, in the Sponsor Preferred Stockaggregate, in any fiscal year of Holdings and $5,000,000 in the aggregate during the term of this Agreement; provided, however, provided that all cash dividend payments any amount referenced in accordance with this clause (vixiv) are subject not utilized in a previous fiscal year may be utilized in the immediately succeeding (but no other) fiscal year; and (xv) the payment by Holdings to any Parent of proceeds from the exercise of stock options of Holdings, so long as such stock options shall have been issued and outstanding on or before the Effective Date.
(b) No Loan Party will, or will permit any of its subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness other than the Obligations as a result of any asset sale, change of control or similar event 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 such Indebtedness as a result of any asset sale, change of control or similar event, except:
(i) payment of regularly scheduled interest and principal payments as and when due in respect of any such Indebtedness to the satisfaction of the following additional conditions on the date extent permitted by Section 6.01; and
(ii) refinancings of such dividend payment and after giving effect thereto:Indebtedness to the extent permitted by Section 6.01.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to declare, pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Holdings may declare and pay dividends with respect to its capital common or preferred stock payable solely in additional shares of its capital common or preferred stock; (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary; (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof; (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group; (v) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments; (vi) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party; (vii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V; (viii) so long as the Distribution Conditions have been satisfied at the time of, and with respect to, any such Restricted Payment, Holdings may purchase, redeem or otherwise acquire warrants (or Equity Interests issued in connection therewith) for Equity Interests of Holdings issued by Holdings on or about February 12, 2021; provided that (1) the aggregate amount of Restricted Payments made pursuant to this clause (viii) after the Effective Date does not exceed $20,000,000, and (2) such Restricted Payments are made only with the proceeds of cash on hand of the Loan Parties and not with the proceeds of Loans; and (ix) so long as the Distribution Conditions have been satisfied at the time of, and with respect to, any Restricted Payment not otherwise permitted by the foregoing clauses (i) through (viii), the Borrower may make such Restricted Payment to Holdings and Holdings may make such Restricted Payment to holders of Equity Interests in Holdings; provided that (1) the aggregate amount of Restricted Payments made pursuant to this clause (ix) after the Effective Date does not exceed $20,000,000, and (2) such Restricted Payment is made only with the proceeds of cash on hand of the Loan Parties and not with the proceeds of Loans.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) Restricted Subsidiaries payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness (other than the Borrower may declare and pay dividends ratably with respect to their capital stockHoldings Note);
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount refinancings of $25,000,000 during any fiscal year, pursuant Indebtedness to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiariesextent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Holdings Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Potbelly Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Holdings nor the Borrowers will, nor will it they permit any of its other Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Holdings may declare and pay dividends with respect to its capital stock Capital Stock payable solely in additional shares of its capital common stock;
, (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to holders of their capital stock;
Capital Stock (other than Holdings), (iii) Allied Waste Holdings may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during 5,000,000 in any fiscal year, year of Holdings pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of Holdings and the Borrower and its Restricted Subsidiaries;
, (iv) Restricted Subsidiaries may pay dividends to Holdings at such times and in such amounts consistent with past practice as shall be necessary to permit Holdings to pay taxes and administrative expenses attributable to the operations of the Subsidiaries; provided that such payments shall not exceed amounts paid in the ordinary course of business prior to the date hereof and (v) Restricted Subsidiaries may pay dividends to Holdings in an aggregate amount sufficient to fund the payment of interest in respect of the Indebtedness under the Holdings Indentures, which interest is due or becomes due within 30 days from the date of payment of each such dividend, provided, however, that no Default exists at the time such dividends are paid (provided further, however, that such dividends shall not be prohibited hereby for more than 180 days in any consecutive 360-day period unless either an Event of Default consisting of a payment default exists hereunder or the maturity of the Loans has been accelerated), and (vi) provided that no Default exists or would result therefrom, Restricted Subsidiaries may pay dividends to Holdings at such times and in such amounts as are necessary for Holdings to make timely payment when due in respect of Indebtedness of Holdings permitted by Section 6.01 other than Indebtedness under the Holdings Indentures; provided that payments in respect of the Holdings Indentures shall be governed solely by clause (v) immediately preceding.
(b) Neither Holdings nor the Borrowers will, nor will they permit any other Restricted Subsidiary to make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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 Indebtedness, except:
(i) 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 debt prohibited by the subordination provisions thereof; and
(ii) refinancings of Indebtedness to the extent permitted by Section 6.01.
(c) Neither Holdings nor the Borrowers will, nor will they permit any other Restricted Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic Purchase Agreement related to any Equity Interest, the payments required to be made by the Borrower or any Restricted Subsidiary may declare and make dividend Subsidiaries are limited to amounts permitted to be paid under this Section 6.08, (ii) in the case of any Synthetic Purchase Agreement related to any Restricted Indebtedness, the payments required to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, be made by the Borrower or any Restricted Subsidiary may pay cash dividends Subsidiaries thereunder are limited to Allied Waste the amount permitted under this Section 6.08 and (iii) in an aggregate cumulative amount the case of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on any Synthetic Purchase Agreement, the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount obligations of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on and the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) Subsidiaries thereunder are subject subordinated to the satisfaction of Secured Obligations on terms satisfactory to the following additional conditions on the date of such dividend payment and after giving effect thereto:Administrative Agent.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste each Subsidiary of the Borrower may declare make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and pay dividends with any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect to its capital stock payable solely in additional shares of its capital stockwhich such Restricted Payment is being made;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste may make Restricted Paymentsrepurchase, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans retire or other benefit plans or in connection with incentive or compensation arrangements for current or former redeem from senior management or employees of the Borrower and its Restricted Subsidiaries;, Equity Interests in the Borrower in an aggregate amount not to exceed $250,000 during any Fiscal Year and $500,000 in the aggregate; provided that after giving effect to such repurchase, retirement or redemption, no Default or Event of Default shall have occurred and be continuing; and
(iviii) repayments of Indebtedness to the extent permitted pursuant to Section 6.07(c).
(b) The Borrower will not, nor will it permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any management, consulting, transaction or similar fees to any stockholder of the Borrower or any Restricted Subsidiary may declare Affiliate of the Borrower, other than fees paid to H.I.G. or its Affiliates, guaranty fees or lease payments payable to Xxxxxxxx Xxxxxx under arrangements in place as of date hereof, and make dividend compensation payments to Allied Waste solely executives of the Borrower or its Subsidiaries in the ordinary course of business or as otherwise approved by the Administrative Agent in its sole discretion.
(c) Each of the Borrower and each other Credit Party will not, nor will it permit any of its Subsidiaries to, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Indebtedness, except:
(i) prepayments of Indebtedness created under the Credit Documents and, to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingcontinuing or would result therefrom, prepayments of any other Indebtedness to the extent permitted under the subordination terms governing such Indebtedness;
(viii) the Borrower or prepayments of Indebtedness owed to any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock Credit Party; and
(including on shares theretofore paid as dividends thereon in accordance with clause (viii) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject refinancings of Indebtedness to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:extent permitted by Section 6.01.
Appears in 1 contract
Samples: Credit Agreement (Advanced Environmental Recycling Technologies Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary 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:
(i) Allied Waste the Company may declare and pay dividends Restricted Payments with respect to its capital stock Equity Interests or repurchase any of its Equity Interests, in each case payable solely in 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 capital common stock;,
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends Restricted Payments ratably with respect to their capital stock;Equity Interests,
(iii) Allied Waste so long as no Default exists or would be caused thereby, the Company may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 7,500,000 during any fiscal yearyear of the Company plus any required Restricted Payments to directors of the Company, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former directors, management or employees of the Borrower Borrowers and its Restricted their Subsidiaries;
(iv) so long as no Default exists or would be caused thereby, the Borrower Company may make scheduled quarterly dividends in an aggregate amount not to exceed $15,000,000 during any fiscal quarter of the Company, provided, that nothing in this Section 6.08(a)(iv) shall operate to prevent the making of a previously declared Restricted Payment by the Company so long as (i) at the declaration date or execution date, such Restricted Payment was permitted by the foregoing and (ii) such Restricted Payment is consummated within the earlier of 60 days and any Restricted Subsidiary may declare and make date under applicable Law on which such dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10or repurchase must be consummated;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (so long as no Default exists or other capital stock, as provided therein) and at any time after June 30, 2004would be caused thereby, the Borrower or any Company and its Subsidiaries may make other Restricted Subsidiary may pay cash dividends Payments as follows:
(x) without limit if the pro forma Modified Net Leverage Ratio is less than 2.50:1.0 after giving effect to Allied Waste such Restricted Payment,
(y) in an aggregate cumulative amount in any fiscal year of the Company, when added to the Investments made under Section 6.04(e) in such fiscal year, not more to exceed $125,000,000 in such fiscal year if the pro forma Modified Net Leverage Ratio is less than 3.00:1.0 but greater than or equal to 2.50:1.0 after giving effect to such Restricted Payment, and
(z) in an aggregate amount in any fiscal year of the Company, when added to the Investments made under Section 6.04(e) in such fiscal year, not to exceed $75,000,000 50,000,000 in order such fiscal year if the pro forma Modified Net Leverage Ratio is greater than or equal to permit Allied Waste 3.00:1.0 after giving effect to pay cash dividends Restricted Payment (and the pro forma Modified Net Leverage Ratio determined under this Section 6.04(e) shall be on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon a pro forma basis in accordance with this clause (vSection 1.05 and, if requested by the Administrative Agent, supported by a certificate of the Company with such pro forma calculation in form and detail reasonably satisfactory to the Administrative Agent)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the Borrower or any exercise price of such options; and
(vii) Restricted Subsidiary may pay Payments which are not material in the aggregate, the proceeds of which are used by the Company to make cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction lieu of the following additional conditions on issuance of fractional shares in connection with the date exercise of such dividend payment and after giving effect thereto:warrants, options or other securities convertible into or exchangeable for Equity Interests of the Company.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. TC “SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.” \f C \l “2”
(a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Borrower may declare and pay dividends with respect to its capital common stock payable solely in additional shares of its capital 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 of the Borrower may declare and pay dividends ratably with respect to their capital stock;
Equity Interests, (iii) Allied Waste may make Restricted Paymentssubject to Section 2.11(c), not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its Restricted Subsidiaries;
common Equity Interests with the proceeds received from the substantially concurrent issuance of new common Equity Interests, (iv) the Borrower and any of its Subsidiaries may make dividends, distributions or payments with respect to awards granted to current or former employees, directors or independent contractors of any Loan Party or any Restricted Subsidiary may declare and make dividend of its Affiliates; provided that, no such dividends, distributions or payments shall be made in cash pursuant to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)iv) unless (x) both immediately prior to and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that after giving effect (including pro forma effect) thereto, no Default or Event of Default has shall occurred and be continuing and (y) such dividends, distributions and payments shall be made in accordance with the Borrower’s 2020 Equity and Incentive Compensation Plan, effective as of May 6, 2020 (as amended, restated, supplemented or otherwise modified from time to time, except to the extent any such amendment, restatement or modification would be materially adverse to the Lenders) or a new equity incentive plan that is then continuingreasonably acceptable to the Administrative Agent (as amended, restated, supplemented or otherwise modified from time to time, except to the extent any such amendment, restatement or modification would be materially adverse to the Lenders) and (v) the Borrower and each Subsidiary may make other Restricted Payments not otherwise permitted under this Section 6.08(a), so long as the Payment Condition shall be satisfied with respect to such Restricted Payment. Notwithstanding the foregoing, and for the avoidance of doubt, (i) the conversion by holders of (including any cash payment upon conversion), or required payment of any principal or premium on, or required payment of any interest with respect to, any Permitted Convertible Notes, in each case, in accordance with the terms of the indenture governing such Permitted Convertible Notes, shall not constitute a Restricted Payment; provided that, to the extent both (a) the aggregate amount of cash payable upon conversion or payment of any Permitted Convertible Note (excluding any required payment of interest with respect to such Permitted Convertible Note and excluding any payment of cash in lieu of a fractional share due upon conversion thereof) exceeds the aggregate principal amount thereof and (b) such conversion or payment does not trigger or correspond to an exercise or early unwind or settlement of a corresponding portion of the Bond Hedge Transactions constituting Permitted Call Spread Swap Agreements relating to such Permitted Convertible Note (including, for the avoidance of doubt, the case where there is no Bond Hedge Transaction constituting a Permitted Call Spread Swap Agreement relating to such Permitted Convertible Note), the payment of such excess cash (any such payment, a “Cash Excess Payment”) shall constitute a Restricted Payment notwithstanding this clause (i); and (ii) any required payment with respect to, or required early unwind or settlement of, any Permitted Call Spread Swap Agreement, in each case, in accordance with the terms of the agreement governing such Permitted Call Spread Swap Agreement shall not constitute a Restricted Payment; provided that, to the extent cash is required to be paid under a Warrant Transaction as a result of the election of “cash settlement” (or substantially equivalent term) as the “settlement method” (or substantially equivalent term) thereunder by the Borrower (or its Affiliate) (including in connection with the exercise and/or early unwind or settlement thereof), the payment of such cash (any such payment, a “Cash Settlement Payment”) shall constitute a Restricted Payment notwithstanding this clause (ii). Notwithstanding the foregoing, the Borrower may make Restricted Payments in respect of Cash Excess Payments and/or Cash Settlement Payments so long as the Payment Condition shall be satisfied with respect thereto. Notwithstanding the foregoing, the Borrower may repurchase, exchange or induce the conversion of Permitted Convertible Notes by delivery of shares of the Borrower’s common stock and/or a different series of Permitted Convertible Notes (which series (x) matures after, and does not require any scheduled amortization or other scheduled payments of principal prior to, the analogous date under the indenture governing the Permitted Convertible Notes that are so repurchased, exchanged or converted and (y) has terms, conditions and covenants that are, taken as a whole, no less favorable to the Borrower than the Permitted Convertible Notes that are so repurchased, exchanged or converted (as determined by the board of directors of the Borrower, or a committee thereof, in good faith)) (any such series of Permitted Convertible Notes, “Refinancing Convertible Notes”) and/or by payment of cash (in an amount that does not exceed the proceeds received by the Borrower from the substantially concurrent issuance of shares of the Borrower’s common stock and/or a Refinancing Convertible Notes plus the net cash proceeds, if any, received by the Borrower pursuant to the related exercise or early unwind or termination of the related Permitted Call Spread Swap Agreements pursuant to the immediately following proviso); provided that, substantially concurrently with, or a commercially reasonable period of time before or after, the related settlement date for the Permitted Convertible Notes that are so repurchased, exchanged or converted, the Borrower shall (and, for the avoidance of doubt, shall be permitted under this Section 6.08(a) to) exercise or unwind or terminate early (whether in cash, shares or any combination thereof) the portion of the Permitted Call Spread Swap Agreements, if any, corresponding to such Permitted Convertible Notes that are so repurchased, exchanged or converted.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any voluntary payment or other voluntary distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any voluntary payment or other voluntary distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(viii) the Borrower or payment of regularly scheduled interest and principal payments as and when due in respect of any Restricted Subsidiary may pay cash dividends Indebtedness permitted to Allied Waste in order be incurred pursuant to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; providedSection 6.01, however, that all cash dividend other than payments in accordance with this clause (vi) are subject respect of any Subordinated Indebtedness to the satisfaction extent prohibited by the subordination provisions thereof;
(iii) 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 following additional conditions on voluntary sale or transfer of the date property or assets securing such Indebtedness (to the extent such sale or transfer is permitted by the terms of Section 6.05). Notwithstanding the foregoing, this Section 6.08(b) shall not apply to any direct or indirect prepayment, redemption, repurchase, conversion, settlement, amendment, modification, supplement or adjustment with respect to any Permitted Convertible Notes pursuant to their terms unless such dividend payment and after giving effect thereto:prepayment, redemption, repurchase, conversion, settlement, amendment, modification, supplement or adjustment results from a default thereunder or an event of the type that constitutes an Event of Default.
Appears in 1 contract
Samples: Credit Agreement (TimkenSteel Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower Holdings or any Restricted Subsidiary may declare and pay Restricted Payments with respect to its Equity Interests payable solely in additional shares or units of its Equity Interests;
(ii) Subsidiaries may declare and pay Restricted Payments ratably with respect to their Equity Interests and may make dividend payments Restricted Payments to Allied Waste solely Holdings or any Restricted Subsidiaries;
(iii) Subsidiaries may declare and pay dividends or make distributions (including pursuant to a tax sharing agreement or similar arrangement) to the extent necessary for Allied Waste to permit Holdings or any other Loan Party to pay any federal, state, local or foreign Taxes of a consolidated, combined, unitary or similar Tax group of which Holdings is the common parent to the extent such dividends or distributions do not exceed the amount Holdings and its Subsidiaries would have paid as a stand-alone group; provided that payments with respect to any Taxes attributable to any Unrestricted Subsidiary for taxes and any taxable period shall be limited to pay administrative expenses the amount actually paid with respect to conduct such period by such Unrestricted Subsidiary to Holdings or its business in accordance with Sections 5.01(bRestricted Subsidiaries for the purposes of paying such Taxes;
(iv) and 6.10[Reserved];
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, so long as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingcontinuing or would result therefrom, Holdings or any Restricted Subsidiary may make Restricted Payments in aggregate amount not to exceed the greater of (A) $25,000,000 and (B) 1.25% of Consolidated Total Assets of Holdings (measured as of the date such Restricted Payment is made based upon the financial statements most recently delivered pursuant to Section 5.01(a) or Section 5.01(b));
(vi) the Borrower Holdings or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; providedmake Restricted Payments so long as, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment both immediately before and after giving effect thereto(including on a Pro Forma Basis) to such Restricted Payments, the Payment Conditions shall be satisfied;
(vii) Holdings or any Restricted Subsidiary may make Restricted Payments to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of Holdings held by any future, present or former employee, director, manager or consultant of Holdings, any of its Subsidiaries, or their estates or the beneficiaries of such estates, pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement; provided that, the aggregate Restricted Payments made under this clause (vii) do not exceed in any fiscal year $5,000,000 (with unused amounts in any fiscal year being carried over to succeeding fiscal years and net of any proceeds received by Holdings and contributed to Holdings after the Effective Date in connection with resales of any common stock or common stock options purchased pursuant to this clause (vii)) plus all net cash proceeds obtained from any key-man life insurance policies received by Holdings after the Effective Date;
(viii) Holdings may convert Equity Interests of Holdings into other Equity Interests of Holdings and in connection therewith may make distributions to its holders in lieu of issuing any fractional Equity Interests;
(ix) to the extent constituting Restricted Payments, Holdings and its Restricted Subsidiaries may make Investments or consummate transactions permitted by Section 6.01, Section 6.03 or Section 6.04, respectively and may consummate the Transactions;
(x) Holdings and its Restricted Subsidiaries may make the payment of any dividend or distribution on account of Equity Interests or the consummation of any redemption within sixty (60) days after the date of declaration of the dividend or distribution on account of Equity Interests or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend, distribution or redemption payment would have complied with the provisions of this Section 6.07; and
(xi) Holdings and its Restricted Subsidiaries may repurchase Equity Interests deemed to occur upon the exercise of stock options, warrants, convertible notes or similar rights to the extent such Equity Interests represent a portion of the exercise price of those stock options, warrants or similar rights or the payment of related withholding taxes.
(b) No Loan Party will, nor will it permit any Restricted Subsidiary to, make any prepayment of or in respect of principal of any Indebtedness for borrowed money, including any sinking fund or similar deposit, on account of the early repurchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness for borrowed money (other than any intercompany Indebtedness owed to or by Holdings or any Restricted Subsidiary) that (i) by its terms is subordinated in right of payment to the Secured Obligations, (ii) secured on a junior lien basis by Liens on the Collateral (excluding for the avoidance of doubt, the Term Loan Obligations), or (iii) unsecured except:
(i) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(ii) Refinancings to the extent permitted by Section 6.01;
(iii) payments of secured Indebtedness that becomes due as a result of an Event of Loss or the sale or transfer of the property or assets securing such Indebtedness;
(iv) payments made in connection with the consummation of the Transactions;
(v) so long as no Event of Default has occurred and is continuing or would result therefrom, other payments not exceeding in the aggregate the greater of (A) $25,000,000 and (B) 1.25% of Consolidated Total Assets of Holdings (measured as of the date such payment is made based upon the financial statements most recently delivered pursuant to Section 5.01(a) or Section 5.01(b));
(vi) Holdings or any Restricted Subsidiary may make payments in respect of Indebtedness if the Payment Conditions shall be satisfied with respect to such payments;
(vii) any payment of Indebtedness incurred in reliance on Section 6.01(n) if such Indebtedness is issued into escrow pending completion of any such Permitted Acquisition or Investment, in connection with the termination of escrow and redemption of such Indebtedness pursuant to the terms thereof; and
(viii) payments made by converting or exchanging any such Indebtedness to Equity Interests of Holdings.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste No Loan Party will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (ia) Allied Waste the Borrower and Parent may declare and pay dividends with respect to its capital common stock payable solely in additional shares of its capital common stock;
, (iib) Restricted so long as no Default exists or would arise as a result thereof, Subsidiaries of the Borrower may declare and pay dividends ratably with respect to the holders of their capital stock;
Equity Interests, (iiic) Allied Waste the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
, (ivd) the Borrower so long as no Default exists or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, would arise as provided therein) and at any time after June 30, 2004a result thereof, the Borrower and Parent may repurchase, redeem, or any Restricted Subsidiary otherwise buy back shares of Parent’s common stock in an aggregate amount not to exceed $10,000,000; provided, that, with respect to each of clauses (a) through (d) above, such Person and the Persons holding its Equity Interests are in compliance with Section 7-80-606 of the Colorado Revised Statutes, and (e) so long as no Default exists or would arise as a result thereof, the Borrower may pay cash dividends to Allied Waste the Parent in an amount sufficient to allow the Parent to pay (i) reasonable audit and other accounting expenses incurred in the ordinary course of business, (ii) Taxes due and payable by the Parent to any taxing authority and reasonable expenses incurred in connection with preparation of related Tax returns and filings, (iii) reasonable and necessary expenses (including professional fees and expenses) incurred by the Parent in connection with (A) registration, public offerings and exchange listing of equity securities and maintenance of the same, (B) compliance with reporting obligations under, or in connection with compliance with, federal or state securities laws, and (C) indemnification and reimbursement of directors, officers and employees in respect of liabilities relating to their serving in any such capacity, or obligations in respect of director and officer insurance (including premiums therefor), (iv) repurchases of shares of Parent’s common stock pursuant to clause (d) above in an aggregate cumulative amount of not more than to exceed $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) 10,000,000, and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on other reasonable expenses incurred by Parent in the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction ordinary course of the following additional conditions on the date of such dividend payment and after giving effect thereto:business.
Appears in 1 contract
Samples: Credit Agreement (Natural Grocers by Vitamin Cottage, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party shall, nor will it shall any Loan Party permit any of its Restricted Subsidiaries or the LS&Co. Trust to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayments, except that, so long as no Default or incur Event of Default shall have occurred and be continuing at the time of any obligation (contingent action described below or otherwise) to do so, except:
would result therefrom: (i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the U.S. Borrower may declare and pay dividends ratably with respect and distributions payable only in Equity Interests (other than Disqualified Stock) of the U.S. Borrower, (ii) the U.S. Borrower may purchase Equity Interests from present or former employees, directors or other recipients (and their beneficiaries) of such Equity Interests under the U.S. Borrower’s incentive compensation plans and agreements as provided under such plans and agreements for aggregate consideration not to their capital stock;
exceed $35.0 million in any twelve (12) Fiscal Month period, (iii) Allied Waste may make Restricted PaymentsPayments to a U.S. Loan Party, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or Restricted Payments by any Restricted Foreign Subsidiary may declare to any Canadian Loan Party and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare Restricted Payments by any Foreign Subsidiary (other than a Canadian Loan Party) to any Foreign Subsidiary; provided that (i) the requirements of this Section 6.08(a) shall not apply to any Restricted Payment when the Payment Conditions with respect thereto are satisfied and pay dividends in respect the Loan Parties shall have delivered to the Administrative Agent either a certificate of a Financial Officer (with reasonably detailed calculations) certifying satisfaction of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (Payment Conditions or other capital stock, as provided thereinevidence of the same reasonably satisfactory to the Administrative Agent and (ii) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has shall be deemed to have occurred if the Payment Conditions with respect to any Restricted Payment cease to be satisfied based solely on any Restricted Payments made when the Payment Conditions with respect thereto were satisfied.
(b) No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries or the LS&Co. Trust to, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (collectively, a “prepayment”) any Indebtedness, except (i) the prepayment of the Loans in accordance with the terms of this Agreement, (ii) the prepayment of Indebtedness payable to a U.S. Loan Party, (iii) the prepayment of Indebtedness payable to a Canadian Loan Party by any Foreign Subsidiary, (iv) the prepayment of Indebtedness owed to any Foreign Subsidiary by any Foreign Subsidiary (other than a Canadian Loan Party), (v) the prepayment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is then continuing;
secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of a permitted Disposition, (vi) the prepayment of Indebtedness, in whole or in part, from the net cash proceeds of (or in exchange for) Permitted Refinancing Indebtedness, (vii) the close out of Ordinary Course Swap Agreements, (viii) the prepayment of Indebtedness of the U.S. Borrower to any of its Subsidiaries and Indebtedness of any of its Subsidiaries to the U.S. Borrower or any Restricted Subsidiary may pay cash dividends of its other Subsidiaries to Allied Waste the extent such Indebtedness to be prepaid is permitted pursuant to Section 6.01, in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon each case, in accordance with clause any subordination terms thereof; provided in the case of a prepayment of Indebtedness of a Loan Party, at the time of such prepayment, such Loan Party would have been permitted to make an Investment in the Person to whom such prepayment is made in the amount of such prepayment and (vix) hereof) prepayment, redemption, defeasance, repurchase or other acquisition or retirement for value of the Existing Dollar Notes and Allied Waste may use such dividends the Existing Euro Notes, in each case required pursuant to pay cash dividends the terms thereof as in effect on the Sponsor Preferred StockSecond Amendment Effective Date; provided, however, provided that all cash dividend payments (i) the requirements of this Section 6.08(b) shall not apply to any payment in accordance respect of any Indebtedness when the Payment Conditions with this clause (vi) respect to such payment are subject satisfied and the Loan Parties shall have delivered to the Administrative Agent either a certificate of a Financial Officer (with reasonably detailed calculations) certifying satisfaction of the following additional conditions Payment Conditions or other evidence of the same reasonably satisfactory to the Administrative Agent and (ii) no Default or Event of Default shall be deemed to have occurred if the Payment Conditions with respect to any such payment in respect of Indebtedness cease to be satisfied based solely on any payments in respect of Indebtedness made when the date of such dividend payment and after giving effect thereto:Payment Conditions with respect thereto were satisfied.
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Wholly Owned Subsidiaries may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted their Equity Interests and Subsidiaries of the Borrower that are not Wholly Owned Subsidiaries may declare and pay dividends ratably with respect to their capital stock;
Equity Interests, (ii) the Parent Borrower may, subject to Section 6.02, make dividends with respect to its Equity Interests consisting solely of additional Equity Interests permitted hereunder and (iii) Allied Waste the Parent Borrower may make Restricted Payments, not exceeding Payments to management or employees of the Parent Borrower and the Subsidiaries or their Permitted Transferees (as defined in the Stockholders Agreement) in an aggregate amount not to exceed $1,000,000 during the term of $25,000,000 during any fiscal yearthis Agreement, pursuant to 119 and in accordance with the Stockholders Agreement, employment agreements, stock option plans or agreements or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stockagreements; provided in each case that no Default or Event of Default has occurred and is then continuing;
continuing or would result therefrom; and provided further that no Restricted Payments shall be permitted pursuant to this clause (viiii) in respect of shares of the Series B Preferred Stock, other than in connection with the repurchase by the Parent Borrower of unvested shares of Series B Preferred Stock under the terms of the 2004 Restricted Stock Incentive Plan of the Parent Borrower; (iv) the Parent Borrower may repurchase or otherwise acquire from any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor holder thereof shares of Qualified Preferred Stock for consideration consisting solely of (including on x) Qualified Preferred Stock, (y) cash in an aggregate amount not greater than the amount of Net Proceeds received from a substantially concurrent issuance of Qualified Preferred Stock or (z) a combination of the Qualified Preferred Stock described in clause (x) and the cash described in clause (y); provided that no Default has occurred and is continuing or would result therefrom; and (v) the Parent Borrower may issue shares theretofore paid of the Series B Preferred Stock as dividends thereon provided in accordance with Section 6.02(iv) (insofar as such issuance constitutes the agreement to make the Restricted Payments contemplated by the terms of the Series B Preferred Stock); provided that this clause (v) hereofshall not permit the making of any Restricted Payment in respect of the Series B Preferred Stock.
(b) The Parent Borrower will not, and Allied Waste may use such dividends will not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Senior First Lien Note, Senior Second Lien Note or Senior 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 or termination of any Senior First Lien Note, Senior Second Lien Note or Senior Subordinated Note, except (i) payment of regularly scheduled interest payments as and when due in respect of the Senior First Lien Notes; provided that the Parent Borrower shall not be permitted to make cash dividends interest payments (A) on and prior to June 15, 2007, in respect of any Senior First Lien Notes (other than the Sponsor Preferred Stock; providedAmended 2004 Notes and any initial or successive Permitted Notes Refinancing Indebtedness in respect thereof) unless (x) such payment is made after the date that is 18 months after the Effective Date, however(y) no Default has occurred and is continuing or would result therefrom and (z) the Fixed Charge Coverage Ratio as of the last day of the most recently completed fiscal month for which financial statements have been delivered pursuant to Section 5.01(a), that all (b) or (c) is equal to or greater than 1.15 to 1.00 or (B) at any time, in respect of any Amended 2004 Notes (or any initial or successive Permitted Notes Refinancing Indebtedness in respect thereof), except (in the case of this clause (B)) for any cash dividend payments interest payment made in lieu of any payment of interest in-kind in an amount less than the minimum denomination of the applicable notes in accordance with this the terms thereof, (ii) payment of regularly scheduled interest payments as and when due in respect of the Senior Second Lien Notes and Senior Subordinated Notes and (iii) payment of principal or accreted value of or interest on any Senior First Lien Note, Senior Second Lien Note or Senior Subordinated Note in connection with the incurrence of any Permitted Notes Refinancing Indebtedness in respect thereof (including payment of cash in respect of the Senior First Lien Notes as expressly contemplated by clause (vib) are subject to the satisfaction of the following additional conditions on the date definition of such dividend payment and after giving effect thereto:“2004 Notes Restatement”).
Appears in 1 contract
Samples: Credit Agreement (Pliant Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Holdings nor the Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste Holdings may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital common stock;
(ii) Restricted Subsidiaries of the Borrower may make Restricted Payments to the Borrower and to wholly owned Subsidiaries of the Borrower and may declare and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste if at the time thereof and after giving effect thereto no Default has occurred and is continuing, the Borrower may pay dividends or make Restricted Paymentsloans to Holdings at such times and in such amounts, not exceeding an aggregate amount of $25,000,000 500,000 during any fiscal year, as shall be necessary to permit Holdings to discharge its permitted liabilities (other than to make any payments 100 with respect to the Holdings Senior Discount Debentures);
(iv) following the fifth anniversary of the Effective Date, if at the time thereof and after giving effect thereto no Default has occurred and is continu ing, the Borrower may pay dividends or make loans to Holdings at such times and in such amounts, not exceeding $14,420,000 during any fiscal year, as shall be necessary to permit Holdings to pay, as and when due, interest on the Holdings Senior Discount Debentures accrued subsequent to the fifth anniversary of the Effective Date;
(v) Holdings may make Restricted Payments pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower Holdings and its Restricted Subsidiaries;
(iv) , including the Borrower redemption or purchase of shares of common stock of Holdings held by former employees of Holdings or any Restricted Subsidiary may declare follow ing the termination of their employment, if (A) at the time thereof and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that giving effect thereto no Default or Event of Default has occurred and is then continuingcontinuing and (B) after giving effect to any such Restricted Payment, the aggregate cumulative amount of Restricted Payments made pursuant to this clause (v) shall not exceed the sum of (1) $1,000,000 during any fiscal year or (2) $10,000,000 at any time during this Agreement, plus the amount of Net Cash Proceeds received by Holdings and its Subsidiaries after the Effective Date and prior to making such Restricted Payment from the issuance of additional shares of its common stock to members of management or employees of Holdings and its Subsidiaries; provided that the promissory notes permitted under Section -------- 6.04(h) may be forgiven or returned without regard to the limitation in clause (B) above and the forgiveness or return thereof shall not be treated as Restricted Payments for purposes of determining compliance with such clause (B) above;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends or make loans to Allied Waste Holdings in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid such amounts and at such times as dividends thereon in accordance with Holdings makes Restricted Payments permitted by clause (v) hereofabove; and
(vii) and Allied Waste may use such dividends to pay cash dividends on if at the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment time thereof and after giving effect theretothereto no Default has occurred and is continuing, the Borrower may pay dividends or make loans to Holdings in such amounts and at such times as required to permit Holdings to pay, as and when due, income taxes payable by Holdings with respect to the consolidated, combined tax filing group that includes the Borrower and its Subsidiaries; provided that dividends or loans pursuant to this clause (vii) shall not at any time exceed the amount of income taxes that would then be payable by the Borrower and its Subsidiaries if the Borrower and its Subsidiaries were not a part of a consolidated, combined tax filing group with Holdings or any other Person.
(b) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash securities or other property) in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness other than payments in respect of the Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) payment of interest on the Holdings Senior Discount Debentures payable solely by the issuance by Holdings of additional Holdings Senior Discount Debentures, provided that after the fifth anniversary of the -------- Effective Date, Holdings will be permitted to pay interest in cash on the Holdings Senior Discount Debentures as and when due;
(vi) repayment of Indebtedness (including Indebtedness under the Existing Credit Agreements) on the Effective Date in connection with the Recapitalization; and
(vii) payment of intercompany Indebtedness between or among the Borrower and its Subsidiaries permitted 102 under clause (iv) of Section 6.01(a) and payment of Indebtedness permitted under clauses (viii) and (ix) of Section 6.01(a).
Appears in 1 contract
Samples: Credit Agreement (Laralev Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted the Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stockEquity Interests, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in shares of Qualified Equity Interests, (iii) scheduled dividends payable with respect to the outstanding shares of Series C Preferred Stock pursuant to the terms thereof in existence on the Effective Date, (iv) the Borrower may make Restricted Payments not exceeding $10,000,000 during any fiscal year pursuant to and in accordance with stock option plans, employment agreements or other benefit plans approved by the Borrower’s board of directors for management, directors, former directors, employees and former employees of the Borrower and the Subsidiaries, (v) if the Borrower or any Subsidiary subsequently becomes an operational national securities exchange under the Exchange Act, the Borrower may redeem the outstanding share of Series D Preferred Stock, (vi) at any time at which the Total Leverage Ratio at such time does not exceed the Covenant Leverage Ratio applicable to that period (each calculated on a Pro Forma Basis), on or after the delivery of the financial statements and the certificate of a Financial Officer pursuant to Section 5.01(a) and Section 5.01(c), respectively, for the Borrower’s fiscal year ended December 31, 2006, the Borrower may repurchase, redeem or retire its Equity Interests in an aggregate amount in any fiscal year not to exceed 50% of Excess Cash Flow for the immediately preceding fiscal year, provided that (x) at the time of any such payment, no Default shall have occurred and be continuing or would result therefrom, (y) any amounts required to be applied to prepay Term Loans pursuant to Section 2.11(d) shall have been so applied and (z) the Borrower has delivered to the Administrative Agent a certificate of a Financial Officer, together with all relevant financial information reasonably requested by the Administrative Agent, demonstrating the calculation of such Excess Cash Flow and (vii) the Borrower may make additional repurchases, redemptions and retirements of its Equity Interests in an aggregate amount not to exceed $25,000,000 during the term of this Agreement.
(b) The Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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 Indebtedness, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) payment or prepayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as, in the form of payment and when due in respect of any Indebtedness, other than payments in respect of the Convertible Notes and Additional Subordinated Debt prohibited by the subordination provisions thereof;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount refinancings of $25,000,000 during any fiscal year, pursuant Indebtedness to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiariesextent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the Borrower voluntary sale or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to transfer of the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;property or assets securing such Indebtedness; and
(v) Allied Waste may declare and pay dividends in respect of payments under the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Tranche C Additional Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Intercompany Loan.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste No Loan Party will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (ia) Allied Waste the Borrower and Parent may declare and pay dividends with respect to its capital common stock payable solely in additional shares of its capital common stock;
, (iib) Restricted so long as no Default exists or would arise as a result thereof, Subsidiaries of the Borrower may declare and pay dividends ratably with respect to the holders of their capital stock;
Equity Interests, (iiic) Allied Waste the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Subsidiaries, (d) so long as no Default exists or would arise as a result thereof, the Parent may make other Restricted Subsidiaries;
Payments with respect to (ivi) the Borrower Parent’s common stock and (ii) repurchases, redemptions or other buybacks of Parent’s common stock, in an aggregate amount not to exceed $10,000,000 during any Restricted Subsidiary may declare fiscal year; provided, that, with respect to each of clauses (a) through (d) above, such Person and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct Persons holding its business Equity Interests are in accordance compliance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect Section 7-80-606 of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock Colorado Revised Statutes, and (e) so long as no Default exists or other capital stock, would arise as provided therein) and at any time after June 30, 2004a result thereof, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste the Parent in an amount sufficient to allow the Parent to pay (i) reasonable audit and other accounting expenses incurred in the ordinary course of business, (ii) Taxes due and payable by the Parent to any taxing authority and reasonable expenses incurred in connection with preparation of related Tax returns and filings, (iii) reasonable and necessary expenses (including professional fees and expenses) incurred by the Parent in connection with (A) registration, public offerings and exchange listing of equity securities and maintenance of the same, (B) compliance with reporting obligations under, or in connection with compliance with, federal or state securities laws, and (C) indemnification and reimbursement of directors, officers and employees in respect of liabilities relating to their serving in any such capacity, or obligations in respect of director and officer insurance (including premiums therefor), (iv) Restricted Payments with respect to (A) the Parent’s common stock and (B) repurchases, redemptions or other buybacks of Parent’s common stock pursuant to clause (d) above in an aggregate cumulative amount of not more than to exceed $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) 10,000,000 during any fiscal year, and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereofother reasonable expenses incurred by Parent in the ordinary course of business.
(q) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction Section 7.12 of the following additional conditions on the date of such dividend payment and after giving effect theretoCredit Agreement is hereby amended to read as follows:
Appears in 1 contract
Samples: Credit Agreement (Natural Grocers by Vitamin Cottage, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Holdings nor the Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste Holdings may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital common stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iiiA) Allied Waste Holdings and the Borrower may make the Restricted Payments contemplated by and permitted under Section 6.04(a), and (B) Holdings may make Restricted Payments, not exceeding an aggregate amount Payments consisting of $25,000,000 during any fiscal year, the issuance of the Company's Notes pursuant to 119 the Stockholders' Agreement, so long as, in each instance under either of (A) or (B), above, each and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees every one of the Borrower Restricted Transaction Conditions shall have been satisfied immediately prior and its Restricted Subsidiariesafter giving effect thereto;
(iv) the Borrower or any Restricted Subsidiary may declare pay to Holdings on the Third Restatement Effective Date, a cash dividend in the amount required to redeem the Holdings Preferred Stock on such date and, thereafter, at such times and make dividend payments to Allied Waste solely in such amounts as shall be necessary, after giving effect to the extent necessary for Allied Waste application by Holdings of any other cash resources available to pay for taxes and it (including Permitted Investments), to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;permit Holdings to:
(vA) Allied Waste may declare if at the time thereof and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that giving effect thereto no Default or Event of Default has occurred and is then continuing;, pay taxes imposed upon it and liabilities incidental to its existence when due,
(viB) if at the time thereof and after giving effect thereto no Default has occurred and is continuing, pay directors' fees to its directors and actual operating expenses when due, provided that dividends paid to Holdings for the purpose of paying directors' fees and actual operating expenses shall not exceed $500,000 in any fiscal year,
(C) make Restricted Payments to be made by Holdings that are permitted by clause (iii) above, and (v), below, and
(D) expenditures to fund the development of certain tracking technology transferred to Holdings by the Borrower on or any Restricted Subsidiary may pay cash dividends before the Third Restatement Effective Date so long as, on a cumulative basis during the period commencing on and after the Third Restatement Effective Date, the aggregate amount of all such expenditures do no exceed an amount equal to Allied Waste $4,000,000, minus the principal amount of all Indebtedness guaranteed by Holdings permitted by Section 6.04(m), above. so long as, in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock each instance under either of (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereofC) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided(D), howeverabove, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction each and every one of the following additional conditions on the date of such dividend payment Restricted Transaction Conditions shall have been satisfied immediately prior and after giving effect thereto; provided that any dividends permitted to be paid to Holdings shall not be paid prior to the date that Holdings will apply the proceeds of such dividends to the purposes for which such dividends are permitted; and
(v) on and after December 31, 2005, Holdings may make Restricted Payments to purchase the Xxxxxx Warrants, or stock issued pursuant thereto, pursuant to an obligation or right to do so under and pursuant to the Xxxxxx Warrants Agreement, so long as (A) both of the Restricted Transaction Conditions shall have been satisfied immediately prior and after giving effect thereto and (B) the Leverage Ratio as of the end of the fiscal quarter most recently ended, adjusted to give effect to such purchase is not greater than the Restricted Transaction Leverage Ratio. By way of example and not limitation, if Section 6.12 requires that, as of the last day of the fiscal quarter ending immediately prior to the date of such purchase, the Leverage Ratio not exceed 6.75 to 1, the Restricted Transaction Leverage Ratio as of the date of such purchase would not be met by the Borrower unless, as of said last day of said immediately preceding fiscal quarter, the Leverage Ratio (adjusted to give effect to such purchase) is equal to or less than 6.25 to 1.
(b) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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 Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01; and
(iv) prepayment or any other repurchase, redemption or repayment of the June 2004 Notes to the extent permitted by Section 6.14, below.
Appears in 1 contract
Samples: Credit Agreement (Argo Tech Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower Borrowers may declare and pay dividends ratably with respect to their capital stockEquity Interests; and
(ii) GMI and GSMS may make Restricted Payments to Parent and TAC may make Restricted Payments to Core Metals Group LLC, in each case, that, when aggregated with all Restricted Payments made on or after the Effective Date pursuant to this Section 6.08(a)(ii), do not exceed an amount equal to 100% of cumulative after-tax Combined Net Income for the period from July 1, 2010 through the end of the most recent Fiscal Quarter or Fiscal Year for which the Borrowers have delivered the financial statements required pursuant to Section 5.01(a) or (b); provided, that (A) at the time of and after giving effect to any such Restricted Payment there shall exist no Default or Event of Default, (B) both before and after giving effect to any such Restricted Payment, the Borrowers are in compliance with the covenants set forth in Section 6.13 on a pro forma basis, (C) at the time of and after giving effect to any such Restricted Payment, Availability is greater than $10,000,000 and (D) five Business Days prior to any such Restricted Payment, the Borrowers shall deliver to the Administrative Agent a certificate of a Financial Officer of each Borrower in form and substance satisfactory to the Administrative Agent certifying that the requirements of this Section 6.08(a)(ii) have been met with respect to such Restricted Payment.
(b) No Loan Party will, nor will it permit any of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness other than payments in respect of any Subordinated Indebtedness to the extent prohibited by the subordination provisions applicable thereto;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount refinancings of $25,000,000 during any fiscal year, pursuant Indebtedness to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;extent permitted by Section 6.01; and
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect payment of secured Indebtedness that becomes due as a result of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (voluntary sale or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction transfer of the following additional conditions on the date of property or assets securing such dividend payment and after giving effect thereto:Indebtedness.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. 146
(a) Allied Waste No Loan Party will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur except that:
(i) any obligation Subsidiary of the Lead Borrower may declare and pay Restricted Payments to its direct equity holders.
(contingent or otherwiseii) the Loan Parties may make Restricted Payments to the Parent solely for the purpose of paying operating expenses incurred in the ordinary course of business by the Parent;
(iii) to do sothe extent constituting a Restricted Payment, Permitted Dispositions and Permitted Investments; and
(iv) the Loan Parties may make Restricted Payments to the Parent:
(A) the proceeds of which shall be used by the Parent to pay franchise Taxes and other fees, Taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence; and
(B) the proceeds of which shall be used by the Parent to pay the Tax liability for any consolidated, combined or similar foreign, federal, state or local income or similar tax group that includes the Loan Parties and/or their Subsidiaries that is attributable to the taxable income, revenue, receipts, gross receipts, gross profits, capital or margin of the Loan Parties and/or their applicable Subsidiaries; provided that such Tax liability shall not exceed the amount that the Loan Parties and/or their applicable Subsidiaries would have been required to pay in respect of the relevant foreign, federal, state or local income or similar Taxes for such fiscal year had the Loan Parties and their Subsidiaries paid such Taxes separately from any such parent as a standalone consolidated, combined, or similar foreign, federal state or local income or similar tax group.
(b) No Loan Party nor any Subsidiary will make or agree to pay or make any voluntary or optional prepayment or other similar distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness incurred after the Petition Date (other than Indebtedness under the Loan Documents), 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 Indebtedness incurred after the Petition Date (other than Indebtedness under the Loan Documents), except:
(i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely Payments in additional shares Capital Stock (as long as no Change in Control would result therefrom) or payments of its capital stock;interest in-kind; 147
(ii) Restricted Subsidiaries prepayments in connection with a refinancing of the Borrower may declare and pay dividends ratably with respect to their capital stockPermitted Indebtedness permitted hereunder;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount prepayments on account of $25,000,000 during Permitted Indebtedness due to any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted SubsidiariesLoan Parties;
(iv) prepayments as expressly provided for in the Borrower DIP Budget, the “first day” orders or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely the Orders entered by the Bankruptcy Court or the Canadian Court that are reasonably acceptable to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10Administrative Agent;
(v) Allied Waste may declare and pay dividends prepayments in respect of Permitted Indebtedness described in clause (h) of the Sponsor Preferred Stock payable solely definition thereof with the proceeds of the disposition of assets other than any such assets constituting ABL Collateral (as defined in additional shares of Sponsor Preferred Stock (or other capital stock, as provided thereinthe Intercreditor Agreement) and at any time after June 30, 2004, assets of the Canadian Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on and the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stockother Canadian Loan Parties; provided in each case that no Default or Event of Default has occurred and is then continuing;and
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends other prepayments in an aggregate amount not to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:exceed $25,000,000.
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Credit Agreement (Toys R Us Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Borrower may declare and pay dividends with respect to its capital stock Equity Interests payable solely in additional shares of its capital common stock;
; (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
Equity Interests; (iii) Allied Waste provided no Default then exists, or would be created thereby, the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 250,000, in the aggregate, during any fiscal year, pursuant to 119 and in accordance with the stock option profit sharing plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries; (iv) cash dividends with respect to the Borrower’s capital stock paid to Esmark by Borrower, provided that (A) at the time such dividends are made and immediately after giving effect to the making of such dividends no Default shall have occurred and be continuing or would result therefrom, (B) the proceeds of all such cash dividends shall be used by Esmark solely to pay taxes attributable to the Borrower and its Subsidiaries that are actually due and payable to a Governmental Authority by the Borrower and its Subsidiaries as part of group filing tax returns or a consolidated, combined, unitary or similar basis, and corporate overhead expenses of Esmark incurred in the ordinary course of business (including expenses incurred in connection with insurance, officer, director and executive employee compensation, legal and accounting services, and the lease or leases of executive office space and the lease or ownership of office equipment therefor), and (C) the aggregate amount of all such cash dividends during any fiscal year of Esmark used to pay corporate overhead expenses of Esmark incurred in the ordinary course of business shall not exceed $6,000,000; and (v) the Borrower may make a cash dividend to Esmark in the amount of the proceeds of the Loans on the Effective Date in accordance with Section 5.08.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and regularly scheduled principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01; and
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect payment of secured Indebtedness that becomes due as a result of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (voluntary sale or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction transfer of the following additional conditions on the date of property or assets securing such dividend payment and after giving effect thereto:Indebtedness.
Appears in 1 contract
Samples: Term Loan Agreement (Esmark INC)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste FCX will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock (A) to shareholders other than FCX, (B) to FCX to the extent the proceeds of such dividends are applied to pay operating expenses in the ordinary course of business, and (C) to FCX so long as (1) no Event of Default under clause (a) or (b) of Article VII shall have occurred and be continuing and (2) if any Event of Default other than under clause (a) or (b) of Article VII shall have occurred and be continuing (or shall result from the payment thereof), so long as the Required Lenders shall not have given notice to FCX that such dividends shall not be permitted to be paid during the pendency of such Event of Default,
(ii) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), FCX may pay regularly scheduled quarterly dividends in respect of its preferred stock issued and outstanding on the Effective Date and effect regularly scheduled mandatory redemptions of its preferred stock issued and outstanding on the Effective Date, in each case, to the extent and in the amounts required by the terms of such preferred stock as in effect on the Effective Date,
(iii) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), FCX may, consistent with its dividend practices as of the Effective Date, and subject to the Incurrence Test, declare and pay dividends on its shares of common stock (and on shares of common stock issued upon the conversion of or in exchange for shares of FCX’s 5 1/2% Convertible Perpetual Preferred Stock outstanding on the Effective Date) in an amount in respect of any fiscal quarter not to exceed $0.3125 per share of FCX’s common stock (adjusted as applicable to eliminate the effect of stock dividends, stock splits, reverse stock splits and other transactions in respect of such shares of common stock, and payable in respect of any shares of common stock received pursuant to any such stock dividend, stock split, reverse stock split or other transaction) (it being understood that Restricted Payments made in reliance on this clause (iii) in respect of shares of FCX’s common stock issued or sold after the Effective Date (or in respect of shares received in stock dividends, stock splits, reverse stock splits or other transactions in respect of such shares of common stock) involving either (x) a receipt of cash proceeds that increased the Restricted Uses Basket or (y) the receipt of assets in consideration for such common stock shall constitute Restricted Uses and shall reduce the Restricted Uses Basket (which reduction may be to less than zero)), and
(iv) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), and subject to the Incurrence Test, FCX may make Restricted Payments in cash in any amounts to the extent that, immediately after giving effect thereto (and to any expenditure of cash required thereby), the Restricted Uses would not be greater than the Restricted Uses Basket.
(b) Each Borrower will not, and will not permit any Restricted Subsidiary to, make, directly or indirectly, any voluntary payment or other voluntary distribution (whether in cash, securities (other than common stock of FCX) or other property) of or in respect of principal of or interest on any Indebtedness, or any voluntary payment or other voluntary distribution (whether in cash, securities (other than common stock of FCX) or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents and payment of Ratable Obligations and Existing PD Obligations;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of Indebtedness prohibited by the subordination provisions thereof;
(iii) Allied Waste may make Restricted Paymentsrefinancings of Indebtedness to the extent permitted by Section 6.01(a) (including, not exceeding an aggregate amount without limitation, the refinancing of $25,000,000 during any fiscal yearIndebtedness, pursuant to 119 and in accordance other than the Senior Notes, with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted SubsidiariesIndebtedness permitted under Section 6.01(a)(xi));
(iv) payment of secured Indebtedness that becomes due as a result of the Borrower sale or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to transfer of the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10property or assets securing such Indebtedness;
(v) Allied Waste may declare and pay dividends in respect prepayments of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Indebtedness owed to FCX by a Restricted Subsidiary may pay cash dividends or owed to Allied Waste in an aggregate cumulative amount a Restricted Subsidiary by FCX or another Restricted Subsidiary, provided that prepayments of Indebtedness owed to a Restricted Subsidiary that is not more than $75,000,000 in order a PCA Loan Party shall be permitted only to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that extent no Default or Event of Default has occurred and is then continuingcontinuing at the time of such prepayment, except that such prepayments shall be permitted (A) to the extent the proceeds of such prepayments are applied to pay operating expenses or to make Capital Expenditures in the ordinary course of business, and (B) to the extent the proceeds of such prepayments are applied to pay scheduled debt service of such Restricted Subsidiary so long as (1) no Event of Default under clause (a) or (b) of Article VII shall have occurred and be continuing and (2) if any Event of Default other than under clause (a) or (b) of Article VII shall have occurred and be continuing (or shall result from the payment thereof), so long as the Required Lenders shall not have given notice to FCX that such prepayments shall not be permitted to be paid during the pendency of such Event of Default;
(vi) prepayments of any Project Financing to the Borrower or any Restricted extent made by the applicable Project Financing Subsidiary may pay with cash dividends from the operations of such Project Financing Subsidiary;
(vii) payments of Indebtedness (other than Indebtedness referred to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (vviii) hereofbelow) that are not permitted by clauses (i)-(vi) of this Section 6.08(b) if and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and extent that after giving effect thereto:to any such payments, the Restricted Uses would not be greater than the Restricted Uses Basket; and
(viii) payments of Indebtedness created under the Parent Credit Agreement and the “Loan Documents” thereunder.
(c) Neither paragraph (a) nor paragraph (b) above shall prohibit any Restricted Payment or payment of Indebtedness if after giving effect to such Restricted Payment or payment of Indebtedness (i) no Term Loan is outstanding under the Parent Credit Agreement and (ii) the sum of (A) the aggregate unused Revolving Commitments, (B) the aggregate unused Commitments (as defined in the Parent Credit Agreement) and (C) Available Domestic Cash shall be not less than $750,000,000.
(d) Each of paragraph (a) and paragraph (b) above shall cease to be of effect from and after the first date upon which the corporate credit ratings of FCX by each of Moody’s and S&P are, respectively, Baa3 or better and BBB- or better.
Appears in 1 contract
Samples: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Borrower may declare and pay dividends with respect to its capital common stock or Qualified Preferred Stock payable solely in additional shares of its capital stock;
common stock or Qualified Preferred Stock, (ii) Restricted Subsidiaries of (other than those directly owned, in whole or part, by the Borrower Borrower) may declare and pay dividends ratably with respect to their capital common stock;
, (iii) Allied Waste the Borrower may make declare and pay cash dividends with respect to its common stock and effect repurchases, redemptions or other Restricted PaymentsPayments with respect to its common stock, not exceeding together in an aggregate amount of $25,000,000 during in any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees year of the Borrower not to exceed 50% of Consolidated Net Income (if positive) for the immediately preceding fiscal year of the Borrower; provided that immediately prior and its Restricted Subsidiaries;
after giving effect to any such payment no Default or Event of Default shall have occurred and be continuing and, immediately after giving effect to any such payment, the Borrower shall have Revolver Availability of more than $100,000,000, (iv) the Borrower may pay cash dividends in an amount not to exceed $60,000,000 in any fiscal year of the Borrower with respect to the Series E Preferred Stock, Series I Preferred Stock or any Restricted Subsidiary may declare other Qualified Preferred Stock; provided that (x) immediately prior and make dividend payments after giving effect to Allied Waste solely any such payment, no Default or Event of Default shall have occurred and be continuing and (y) only so long as a Financial Covenant Effectiveness Period is then occurring, the Consolidated Fixed Charge Coverage Ratio for the period of four consecutive fiscal quarters most recently ended on or prior to the extent necessary date of such payment, calculated on a pro forma basis as if such payment were made on the last day of such period (and excluding any such payments previously made pursuant to this clause during such four quarter period but attributed for Allied Waste purposes of this calculation to pay for taxes and the last day of a prior period which day does not occur in such four quarter period) is not less than the ratio applicable to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
such period of four fiscal quarters under Section 6.12, (v) Allied Waste the Borrower and the Subsidiaries may make Restricted Payments consisting of the repurchase or other acquisition of shares of, or options to purchase shares of, capital stock of the Borrower or any of its Subsidiaries from employees, former employees, directors or former directors of the Borrower or any Subsidiary (or their permitted transferees), in each case pursuant to stock option plans, stock plans, employment agreements or other employee benefit plans approved by the board of directors of the Borrower; provided that no Default has occurred and is continuing; and provided further that the aggregate amount of such Restricted Payments made after the Original Restatement Effective Date shall not exceed $10,000,000, (vi) the Subsidiaries may declare and pay cash dividends in respect to the Borrower; provided that the Borrower shall, within a reasonable time following receipt of any such payment, use all of the Sponsor Preferred Stock payable solely proceeds thereof for a purpose set forth in additional shares Section 5.10(b) (including the payment of Sponsor Preferred Stock dividends required or permitted pursuant to this Section 6.08(a)), (or other capital stock, as provided thereinvii) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary and the Subsidiaries may declare and pay cash dividends with respect to Allied Waste the Equity Interests set forth on Schedule 6.08(a) to the extent, and only to the extent, required pursuant to the terms of such Equity Interests or any other agreement in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends effect on the Sponsor Preferred Stock Effective Date and (including on shares theretofore paid viii) so long as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingcontinuing or would result therefrom, the Borrower may redeem or repurchase shares of the Borrower's and/or its Subsidiaries' (including Rite Aid Lease Management Company's) Preferred Stock or the 4.75% Convertible Notes (A) solely with Net Cash Proceeds received by the Borrower from issuances of its common stock after the Original Restatement Effective Date, provided that any such repurchase or redemption is effected within 150 days after the receipt of such proceeds or (B) with other funds available to the Borrower if, immediately after giving effect to any such redemption or repurchase, the Borrower shall have Revolver Availability of more than $100,000,000.
(b) The Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(i) payments or prepayments of Indebtedness created under the Senior Loan Documents;
(ii) payments of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted pursuant to Section 6.01(a);
(iii) (A) prepayments of Indebtedness permitted pursuant to Section 6.01(a)(v) or (vi) with the proceeds of Indebtedness permitted pursuant to Section 6.01(a)(v) or (vi) and (B) prepayments of Indebtedness permitted pursuant to Section 6.01(a)(vii) with the proceeds of Indebtedness permitted pursuant to Section 6.01(a)(vii);
(iv) payments of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) provided no Default has occurred and is continuing or would result therefrom, Optional Debt Repurchases of Inside Indebtedness and, to the extent permitted by paragraph (c) of this Section, Optional Debt Repurchases of Outside Indebtedness;
(vi) repurchases, exchanges or redemptions of Indebtedness for consideration consisting solely of common stock of the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Qualified Preferred Stock;
(vii) prepayments of Capital Lease Obligations in connection with the sale, closing or relocation of Stores;
(viii) prepayments of Indebtedness in connection with the incurrence of Refinancing Indebtedness permitted pursuant to Section 6.01(a)(ii) or (viii); providedand
(ix) prepayments of Indebtedness permitted pursuant to Section 6.01(a)(iii), however, that all cash dividend payments in accordance with this clause if permitted by the subordination provisions applicable to such Indebtedness.
(vic) are subject to The Borrower and the satisfaction Subsidiaries will not effect Optional Debt Repurchases of the following additional conditions on the date of such dividend payment Outside Indebtedness unless immediately prior and after giving effect thereto:to any such Optional Debt Repurchases, (x) no Default or Event of Default shall have occurred and be continuing and (y) the Borrower shall have Revolver Availability of more than $100,000,000.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock (A) to shareholders other than FCX, (B) to FCX to the extent the proceeds of such dividends are applied to pay operating expenses in the ordinary course of business, and (C) to FCX so long as (1) no Event of Default under clause (a) or (b) of Article VII shall have occurred and be continuing and (2) if any Event of Default other than under clause (a) or (b) of Article VII shall have occurred and be continuing (or shall result from the payment thereof), so long as the Required Lenders shall not have given notice to FCX that such dividends shall not be permitted to be paid during the pendency of such Event of Default,
(ii) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), FCX may pay regularly scheduled quarterly dividends in respect of its preferred stock issued and outstanding on the Effective Date and effect regularly scheduled mandatory redemptions of its preferred stock issued and outstanding on the Effective Date, in each case, to the extent and in the amounts required by the terms of such preferred stock as in effect on the Effective Date,
(iii) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), FCX may, consistent with its dividend practices as of the Effective Date, and subject to the Incurrence Test, declare and pay dividends on its shares of common stock (and on shares of common stock issued upon the conversion of or in exchange for shares of FCX’s 5 1/2% Convertible Perpetual Preferred Stock outstanding on the Effective Date) in an amount in respect of any fiscal quarter not to exceed $0.3125 per share of FCX’s common stock (adjusted as applicable to eliminate the effect of stock dividends, stock splits, reverse stock splits and other transactions in respect of such shares of common stock, and payable in respect of any shares of common stock received pursuant to any such stock dividend, stock split, reverse stock split or other transaction) (it being understood that Restricted Payments made in reliance on this clause (iii) in respect of shares of FCX’s common stock issued or sold after the Effective Date (or in respect of shares received in stock dividends, stock splits, reverse stock splits or other transactions in respect of such shares of common stock) involving either (x) a receipt of cash proceeds that increased the Restricted Uses Basket or (y) the receipt of assets in consideration for such common stock shall constitute Restricted Uses and shall reduce the Restricted Uses Basket (which reduction may be to less than zero)), and
(iv) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), and subject to the Incurrence Test, FCX may make Restricted Payments in cash in any amounts to the extent that, immediately after giving effect thereto (and to any expenditure of cash required thereby), the Restricted Uses would not be greater than the Restricted Uses Basket.
(b) The Borrower will not, nor will it permit any Restricted Subsidiary to, make, directly or indirectly, any voluntary payment or other voluntary distribution (whether in cash, securities (other than common stock of FCX) or other property) of or in respect of principal of or interest on any Indebtedness, or any voluntary payment or other voluntary distribution (whether in cash, securities (other than common stock of FCX) or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents and payment of Ratable FCX Obligations, Ratable Cyprus Obligations and Ratable PD Obligations;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of Indebtedness prohibited by the subordination provisions thereof;
(iii) Allied Waste may make Restricted Paymentsrefinancings of Indebtedness to the extent permitted by Section 6.01(a) (including, not exceeding an aggregate amount without limitation, the refinancing of $25,000,000 during any fiscal yearIndebtedness, pursuant to 119 and in accordance other than the Senior Notes, with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted SubsidiariesIndebtedness permitted under Section 6.01(a)(xi));
(iv) payment of secured Indebtedness that becomes due as a result of the Borrower sale or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to transfer of the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10property or assets securing such Indebtedness;
(v) Allied Waste may declare and pay dividends in respect prepayments of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Indebtedness owed to FCX by a Restricted Subsidiary may pay cash dividends or owed to Allied Waste in an aggregate cumulative amount a Restricted Subsidiary by FCX or another Restricted Subsidiary, provided that prepayments of Indebtedness owed to a Restricted Subsidiary that is not more than $75,000,000 in order a Loan Party shall be permitted only to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that extent no Default or Event of Default has occurred and is then continuingcontinuing at the time of such prepayment, except that such prepayments shall be permitted (A) to the extent the proceeds of such prepayments are applied to pay operating expenses or to make Capital Expenditures in the ordinary course of business, and (B) to the extent the proceeds of such prepayments are applied to pay scheduled debt service of such Restricted Subsidiary so long as (1) no Event of Default under clause (a) or (b) of Article VII shall have occurred and be continuing and (2) if any Event of Default other than under clause (a) or (b) of Article VII shall have occurred and be continuing (or shall result from the payment thereof), so long as the Required Lenders shall not have given notice to FCX that such prepayments shall not be permitted to be paid during the pendency of such Event of Default;
(vi) prepayments of any Project Financing to the Borrower extent made by the applicable Project Financing Subsidiary with cash from the operations of such Project Financing Subsidiary;
(vii) payments of Indebtedness (other than Indebtedness referred to in clause (viii) below) that are not permitted by clauses (i)-(vi) of this Section 6.08(b) if and to the extent that after giving effect to any such payments, the Restricted Uses would not be greater than the Restricted Uses Basket; and
(viii) payment of Indebtedness created under the Restated Credit Agreement and the “Loan Documents” thereunder, provided that no Indebtedness may be prepaid under the Restated Credit Agreement (A) at any time that any Loan or LC Disbursement is outstanding and (B) if there is outstanding any Restricted Subsidiary may pay cash dividends to Allied Waste Letter of Credit or Letters Credit in order to permit Allied Waste to pay cash dividends on an aggregate outstanding amount smaller than such prepayment, unless such Letter of Credit or Letters of Credit are redesignated as Letters of Credit under the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon Restated Credit Agreement in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Section 2.05(a)(iii).
Appears in 1 contract
Samples: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNone of the Parent, nor will it the Obligor or any other Restricted Subsidiary shall make payments which are Restricted Payments, other than:
(i) Restricted Payments made by any Restricted Subsidiary of the Obligor in respect of its Equity Interests ratably to the holders of such Equity Interests;
(ii) dividends paid by the Parent with respect to its Equity Interests payable solely in additional Equity Interests (other than Preferred Stock);
(iii) other Restricted Payments; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Restricted Payment is made, the aggregate amount of such Restricted Payment shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(iv) other Restricted Payments; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Restricted Payment, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor);
(v) Restricted Payments at such times and in such amounts as shall be necessary to permit any Parent Entity or the Parent to pay any franchise and other similar Taxes required to maintain its corporate, legal and organizational existence associated with the Parent, the Obligor and its Subsidiaries; and
(vi) for any taxable period ending after the Refinancing Effective Date (a) for which the Obligor is treated as a partnership or disregarded entity for U.S. federal income tax purposes, the payment of distributions to the Obligor’s direct or indirect equity owners in an aggregate amount equal to the product of (x)(1) the amount of taxable income allocated from or with respect to the Obligor and its Subsidiaries to the direct or indirect
(b) None of the Parent, the Obligor or any other Restricted Subsidiaries to, declare or make, Subsidiary will make or agree to pay or make, directly or indirectly, any Restricted Paymentpayment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Junior Indebtedness, or incur any obligation payment or other distribution (contingent whether in cash, securities or otherwise) to do soother property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, defeasance, cancelation or termination of any Junior Indebtedness, except:
(i) Allied Waste may declare regularly scheduled interest and pay dividends with principal payments as and when due in respect to its capital stock payable solely of any Junior Indebtedness other than (A) such payments in additional shares respect of its capital stockSubordinated Affiliate Indebtedness and (B) such payments in respect of Subordinated Indebtedness that are prohibited by the subordination provisions thereof;
(ii) Restricted Subsidiaries refinancings of Junior Indebtedness with the Borrower may declare and pay dividends ratably with respect to their capital stockproceeds of other Indebtedness permitted under Section 6.02;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount payments of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees secured Junior Indebtedness that becomes due as a result of the Borrower and its Restricted Subsidiariesvoluntary sale or transfer of the assets securing such Indebtedness in transactions permitted hereunder;
(iv) payments of or in respect of Junior Indebtedness made solely with Equity Interests in the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;Parent (other than Preferred Stock); and
(v) Allied Waste may declare and pay dividends other payments of or in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred StockJunior Indebtedness; provided in each case that (A) no Specified Default or Event of Default has shall have occurred and be continuing or would result therefrom and (B) at the time each such payment is then continuing;made, the aggregate amount of such payment shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(vi) other payments of or in respect of Junior Indebtedness; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) time of and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and immediately after giving effect thereto:to any such payment, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock (A) to shareholders other than FCX, (B) to FCX to the extent the proceeds of such dividends are applied to pay operating expenses in the ordinary course of business, and (C) to FCX so long as (1) no Event of Default under clause (a) or (b) of Article VII shall have occurred and be continuing and (2) if any Event of Default other than under clause (a) or (b) of Article VII shall have occurred and be continuing (or shall result from the payment thereof), so long as the Required Lenders shall not have given notice to FCX that such dividends shall not be permitted to be paid during the pendency of such Event of Default,
(ii) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), FCX may pay regularly scheduled quarterly dividends in respect of its preferred stock issued and outstanding on the Effective Date and effect regularly scheduled mandatory redemptions of its preferred stock issued and outstanding on the Effective Date, in each case, to the extent and in the amounts required by the terms of such preferred stock as in effect on the Effective Date,
(iii) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), FCX may, consistent with its dividend practices as of the Effective Date, and subject to the Incurrence Test, declare and pay dividends on its shares of common stock (and on shares of common stock issued upon the conversion of or in exchange for shares of FCX’s 5 1/2% Convertible Perpetual Preferred Stock outstanding on the Effective Date) in an amount in respect of any fiscal quarter not to exceed $0.3125 per share of FCX’s common stock (adjusted as applicable to eliminate the effect of stock dividends, stock splits, reverse stock splits and other transactions in respect of such shares of common stock, and payable in respect of any shares of common stock received pursuant to any such stock dividend, stock split, reverse stock split or other transaction) (it being understood that Restricted Payments made in reliance on this clause (iii) in respect of shares of FCX’s common stock issued or sold after the Effective Date (or in respect of shares received in stock dividends, stock splits, reverse stock splits or other transactions in respect of such shares of common stock) involving either (x) a receipt of cash proceeds that increased the Restricted Uses Basket or (y) the receipt of assets in consideration for such common stock shall constitute Restricted Uses and shall reduce the Restricted Uses Basket (which reduction may be to less than zero)), and
(iv) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), and subject to the Incurrence Test, FCX may make Restricted Payments in cash in any amounts to the extent that, immediately after giving effect thereto (and to any expenditure of cash required thereby), the Restricted Uses would not be greater than the Restricted Uses Basket.
(b) The Borrower will not, nor will it permit any Restricted Subsidiary to, make, directly or indirectly, any voluntary payment or other voluntary distribution (whether in cash, securities (other than common stock of FCX) or other property) of or in respect of principal of or interest on any Indebtedness, or any voluntary payment or other voluntary distribution (whether in cash, securities (other than common stock of FCX) or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents and payment of Ratable Obligations and Existing PD Obligations;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of Indebtedness prohibited by the subordination provisions thereof;
(iii) Allied Waste may make Restricted Paymentsrefinancings of Indebtedness to the extent permitted by Section 6.01(a) (including, not exceeding an aggregate amount without limitation, the refinancing of $25,000,000 during any fiscal yearIndebtedness, pursuant to 119 and in accordance other than the Senior Notes, with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted SubsidiariesIndebtedness permitted under Section 6.01(a)(xi));
(iv) payment of secured Indebtedness that becomes due as a result of the Borrower sale or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to transfer of the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10property or assets securing such Indebtedness;
(v) Allied Waste may declare and pay dividends in respect prepayments of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Indebtedness owed to FCX by a Restricted Subsidiary may pay cash dividends or owed to Allied Waste in an aggregate cumulative amount a Restricted Subsidiary by FCX or another Restricted Subsidiary, provided that prepayments of Indebtedness owed to a Restricted Subsidiary that is not more than $75,000,000 in order a Loan Party shall be permitted only to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that extent no Default or Event of Default has occurred and is then continuingcontinuing at the time of such prepayment, except that such prepayments shall be permitted (A) to the extent the proceeds of such prepayments are applied to pay operating expenses or to make Capital Expenditures in the ordinary course of business, and (B) to the extent the proceeds of such prepayments are applied to pay scheduled debt service of such Restricted Subsidiary so long as (1) no Event of Default under clause (a) or (b) of Article VII shall have occurred and be continuing and (2) if any Event of Default other than under clause (a) or (b) of Article VII shall have occurred and be continuing (or shall result from the payment thereof), so long as the Required Lenders shall not have given notice to FCX that such prepayments shall not be permitted to be paid during the pendency of such Event of Default;
(vi) prepayments of any Project Financing to the Borrower extent made by the applicable Project Financing Subsidiary with cash from the operations of such Project Financing Subsidiary;
(vii) payments of Indebtedness (other than Indebtedness referred to in clause (viii) below) that are not permitted by clauses (i)-(vi) of this Section 6.08(b) if and to the extent that after giving effect to any such payments, the Restricted Uses would not be greater than the Restricted Uses Basket; and
(viii) payment of Indebtedness created under the Restated Credit Agreement and the “Loan Documents” thereunder, provided that no Indebtedness may be prepaid under the Restated Credit Agreement (A) at any time that any Loan or LC Disbursement is outstanding and (B) if there is outstanding any Restricted Subsidiary may pay cash dividends to Allied Waste Letter of Credit or Letters Credit in order to permit Allied Waste to pay cash dividends on an aggregate outstanding amount smaller than such prepayment, unless such Letter of Credit or Letters of Credit are redesignated as Letters of Credit under the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon Restated Credit Agreement in accordance with clause Section 2.05(a)(iii).
(vc) hereofNeither paragraph (a) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause nor paragraph (vib) are subject to the satisfaction above shall prohibit any Restricted Payment or payment of the following additional conditions on the date of such dividend payment and Indebtedness if after giving effect thereto:to such Restricted Payment or payment of Indebtedness (i) no Term Loan is outstanding and (ii) the sum of (A) the aggregate unused Revolving Commitments, (B) the aggregate unused Commitments (as defined in the Restated Credit Agreement) and (C) Available Domestic Cash shall be not less than $750,000,000.
(d) Each of paragraph (a) and paragraph (b) above shall cease to be of effect from and after the first date upon which the corporate credit ratings of FCX by each of Moody’s and S&P are, respectively, Baa3 or better and BBB- or better.
Appears in 1 contract
Samples: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNone of the Parent, nor will it the Obligor or any other Restricted Subsidiary shall make payments which are Restricted Payments, other than:
(i) Restricted Payments made by any Restricted Subsidiary of the Obligor in respect of its Equity Interests ratably to the holders of such Equity Interests;
(ii) dividends paid by the Parent with respect to its Equity Interests payable solely in additional Equity Interests (other than Preferred Stock);
(iii) other Restricted Payments; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Restricted Payment is made, the aggregate amount of such Restricted Payment shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(iv) other Restricted Payments; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Restricted Payment, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor);
(v) Restricted Payments at such times and in such amounts as shall be necessary to permit any Parent Entity or the Parent to pay any franchise and other similar Taxes required to maintain its corporate, legal and organizational existence associated with the Parent, the Obligor and its Subsidiaries; and
(vi) for any taxable period ending after the Refinancing Effective Date (a) for which the Obligor is treated as a partnership or disregarded entity for U.S. federal income tax purposes, the payment of distributions to the Obligor’s direct or indirect equity owners in an aggregate amount equal to the product of (x)(1) the amount of taxable income allocated from or with respect to the Obligor and its Subsidiaries to the direct or indirect equity owners of the Obligor for such taxable year, reduced by (2) any cumulative taxable losses allocated from (or arising with respect to) the Obligor and its Subsidiaries to such equity owners for any prior taxable year ending after the Amendment Effective Date to the extent such prior losses are of a character that would permit such losses to be deducted against income or gain of the taxable year and that have not previously been taken into account in reducing the amount of any Permitted Tax Distributions, and taking into account any limitations on the deductibility of such prior losses under Section 172(a) of the Code and (y) the highest maximum combined marginal U.S. federal, state and local income tax rate applicable to an individual or corporation that is resident in New York City (whichever is higher) for such taxable year (taking into account the character of the taxable income in question (long-term capital gain, qualified dividend income, etc. and the deductibility of state and local income taxes for U.S. federal income tax purposes (and any applicable limitation thereon))); or (b) for which the Obligor is treated as a member of a consolidated group for U.S. federal income tax purposes, the payment of amounts with respect to any taxable period to the extent such payments do not exceed the amount that the Obligor and any consolidated Subsidiaries of the Obligor would have been required to pay in respect to such relevant federal, state, local or foreign Taxes for such taxable period (computed at the highest marginal tax rate) if, for all taxable years ending after the Amendment Effective Date, the Obligor and any consolidated Subsidiaries of the Obligor had paid such Taxes as a separate consolidated, combined or unitary group separately from any Parent Entity (or, if there are not such Subsidiaries, on a separate company basis)(any such Restricted Subsidiaries toPayment permitted under this clause (vi), declare a “Permitted Tax Distribution”).
(b) None of the Parent, the Obligor or make, any other Restricted Subsidiary will make or agree to pay or make, directly or indirectly, any Restricted Paymentpayment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Junior Indebtedness, or incur any obligation payment or other distribution (contingent whether in cash, securities or otherwise) to do soother property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, defeasance, cancelation or termination of any Junior Indebtedness, except:
(i) Allied Waste may declare regularly scheduled interest and pay dividends with principal payments as and when due in respect to its capital stock payable solely of any Junior Indebtedness other than (A) such payments in additional shares respect of its capital stockSubordinated Affiliate Indebtedness and (B) such payments in respect of Subordinated Indebtedness that are prohibited by the subordination provisions thereof;
(ii) Restricted Subsidiaries refinancings of Junior Indebtedness with the Borrower may declare and pay dividends ratably with respect to their capital stockproceeds of other Indebtedness permitted under Section 6.02;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount payments of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees secured Junior Indebtedness that becomes due as a result of the Borrower and its Restricted Subsidiariesvoluntary sale or transfer of the assets securing such Indebtedness in transactions permitted hereunder;
(iv) payments of or in respect of Junior Indebtedness made solely with Equity Interests in the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;Parent (other than Preferred Stock); and
(v) Allied Waste may declare and pay dividends other payments of or in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred StockJunior Indebtedness; provided in each case that (A) no Specified Default or Event of Default has shall have occurred and be continuing or would result therefrom and (B) at the time each such payment is then continuing;made, the aggregate amount of such payment shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(vi) other payments of or in respect of Junior Indebtedness; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) time of and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and immediately after giving effect thereto:to any such payment, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).
Appears in 1 contract
Samples: Continuing Covenant Agreement
Restricted Payments; Certain Payments of Indebtedness. (ai) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(iA) Allied Waste the Borrower may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(iiB) Restricted Subsidiaries of the Borrower may make Restricted Payments to the Borrower and to wholly owned Subsidiaries of the Borrower and may declare and pay dividends ratably with respect to their capital stock;
(iiiC) Allied Waste the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management directors, officers, consultants, advisors or employees of the Borrower and its Restricted Subsidiaries;
(iv) , including the redemption or purchase of shares of common stock of the Borrower held by former employees of the Borrower or any Subsidiary following the termination of their employment in an aggregate amount not exceeding during any fiscal year the amount equal to two times the aggregate amount of Restricted Payments made by the Borrower pursuant to such plans during the last fiscal year ended prior to the Effective Date, provided that exercises of stock options issued pursuant to stock option plans existing on the Effective Date in accordance with the terms of such plans in effect on the Effective Date shall not be included in the calculation of such amount and there shall be no limit on Restricted Payments made in connection with such exercises;
(D) the Borrower and its Subsidiaries may pay the cash consideration payable in the Debt Tender, the cash consideration payable in the Equity Tender and the cash consideration payable in the Merger (including any payments in respect of appraisal rights pursuant to Section 262 of the Delaware General Corporation Law); and
(E) each Financial Services Subsidiary may declare pay dividends with respect to its preferred stock in an aggregate amount not exceeding the amount of such dividends required to be paid pursuant to the terms of the documents governing such preferred stock.
(ii) The Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(A) payment of Indebtedness created under the Loan Documents;
(B) payment of regularly scheduled interest and make dividend principal payments to Allied Waste solely as and when due in respect of any Indebtedness (x) of the Borrower or (y) permitted under Section 5.02(k);
(C) refinancings of Indebtedness of the Borrower and, to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(bpermitted by clause (xi) and 6.10;of Section 5.02(k), of any Subsidiary; and
(vD) Allied Waste may declare and pay dividends in respect payment of secured Indebtedness that becomes due as a result of the Sponsor Preferred Stock payable solely voluntary sale or transfer of the property or assets securing such Indebtedness.
(iii) The Borrower will not, nor will it permit any Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (A) in additional the case of any Synthetic Purchase Agreement related to any shares of Sponsor Preferred Stock capital stock of the Borrower, the payments required to be made by the Borrower are limited to amounts permitted to be paid under clause (or other capital stocki) of Section 5.02(l), as provided therein(B) and at in the case of any time after June 30Synthetic Purchase Agreement related to any Restricted Indebtedness, 2004, the payments required to be made by the Borrower or any Restricted Subsidiary may pay cash dividends the Subsidiaries thereunder are limited to Allied Waste in an aggregate cumulative the amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this permitted under clause (v)ii) of Section 5.02(l) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount (C) in the case of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event any Synthetic Purchase Agreement, the obligations of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on and the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) Subsidiaries thereunder are subject subordinated to the satisfaction of Obligations on terms satisfactory to the following additional conditions on the date of such dividend payment and after giving effect thereto:Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Temple Inland Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Holdings nor the Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted the Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stockEquity Interests;
(ii) Holdings may declare and pay dividends with respect to its Equity Interests payable solely in shares of Qualified Equity Interests;
(iii) Allied Waste the Borrower may, or may make Restricted Payments to Holdings and Holdings may, make Restricted Payments, not exceeding an exceeding, taken together with the aggregate principal amount of all Indebtedness incurred under Section 6.01(a)(xiv) during such fiscal year, $25,000,000 5,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans approved by the Borrower’s board of directors for former or in connection with incentive or compensation arrangements for current or former management management, directors, Franchisees or employees of Holdings, the Borrower and its Restricted or any of the Subsidiaries;
(iv) the Borrower or may make Restricted Payments to Holdings at such times and in such amounts (A) not exceeding $5,000,000 during any Restricted Subsidiary may declare fiscal year, as shall be necessary to permit Holdings to discharge its general corporate and make dividend payments to Allied Waste solely to overhead (including franchise taxes and directors fees and, following the extent completion of an IPO, costs and expenses necessary for Allied Waste or incidental to Holdings’s continued existence as a public company) expenses incurred in the ordinary course and other permitted liabilities and (B) as shall be necessary to pay for taxes the Tax liabilities of Holdings directly attributable to (or arising as a result of) the operations of the Borrower and the Subsidiaries, provided, however, that (1) the amount of Restricted Payments pursuant to clause (B) of this clause (iv) shall not exceed the amount that the Borrower and the Subsidiaries would be required to pay administrative expenses in respect of Federal, State and local taxes were the Borrower and the Subsidiaries to conduct its business in accordance with Sections 5.01(bpay such taxes as stand-alone taxpayers and (2) and 6.10all Restricted Payments made to Holdings pursuant to this clause (iv) are used by Holdings for the purposes specified herein within five Business Days after Holdings’s receipt thereof;
(v) Allied Waste the Borrower may make Restricted Payments to the extent necessary to permit Holdings to make payments of or on account of (A) management, consulting, investment banking and advisory fees and (B) reimbursement of out-of-pocket costs and expenses incurred in connection with management, consulting, investment banking and advisory services, in each case to the Sponsors or Sponsor Affiliates to the extent permitted by Section 6.09, provided that no Default shall have occurred and be continuing or would result therefrom;
(vi) on or after (A) July 1, 2007, the Borrower may declare and pay dividends and distributions to Holdings, and Holdings may declare and pay dividends and distributions with respect to, or otherwise repurchase, redeem or retire, its Equity Interests, up to an amount, taken together with the aggregate amount of Investments made under Section 6.04(q), equal to 50% of Excess Cash Flow from and after July 1, 2005, through the end of the most-recently ended fiscal year of the Borrower prior to the date of such dividend, distribution, repurchase, redemption or retirement for which financial statements have been delivered pursuant to Section 5.01(a), provided that (x) at the time of any such dividend, distribution, repurchase, redemption or retirement, no Default shall have occurred and be continuing or would result therefrom, (y) at the time of such dividend, distribution, repurchase, redemption or retirement and after giving effect thereto and to any borrowing in connection therewith, the 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 have been delivered pursuant to Section 5.01(a) or (b) is less than 3.00 to 1.00 and (z) in the case of any such Restricted Payment in an amount in excess of $15,000,000, the Borrower has delivered to the Administrative Agent a certificate of a Financial Officer, together with all relevant financial information reasonably requested by the Administrative Agent, demonstrating the calculation of such Excess Cash Flow or (B) the completion of an IPO, the Borrower may declare and pay dividends and distributions to Holdings, and Holdings may declare and pay dividends and distributions with respect to, or otherwise repurchase, redeem or retire, its common share Equity Interests, up to an amount, taken together with the aggregate amount of Investments made under Section 6.04(q), equal to the greater of (x) 50% of Excess Cash Flow from and after July 1, 2005, through the end of the most-recently ended fiscal year of the Borrower prior to the date of such dividend, distribution, repurchase, redemption or retirement for which financial statements have been delivered pursuant to Section 5.01(a), and (y) the sum of (1) $50,000,000, (2) 50% of Consolidated Net Income of Holdings during the period from and after December 31, 2005, to the end of the most-recently ended fiscal quarter of Holdings prior to the date of such dividend or distribution for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit) and (3) the aggregate amount of proceeds received by Holdings as a result of the issuance of Qualified Equity Interests (other than such proceeds used in accordance with Section 6.08(vii)), provided that (x) at the time of such dividend, no Default shall have occurred and be continuing or would result therefrom and (y) at the time of such dividend and after giving effect thereto, the Borrower complies, on a Pro Forma Basis, with the covenants set out in Sections 6.12 and 6.13;
(vii) concurrently with any issuance of Qualified Equity Interests, Holdings may redeem, purchase or retire any Equity Interests of Holdings using the proceeds of, or convert or exchange any Equity Interests of Holdings for, such Qualified Equity Interests;
(viii) the Borrower may make Restricted Payments to Holdings in such amounts as shall be necessary to pay out-of-pocket legal, accounting and filing fees, costs and expenses incurred in connection with a proposed initial public offering of Qualified Equity Interests of Holdings, provided that no Default shall have occurred and be continuing or would result therefrom;
(ix) the Borrower may make Restricted Payments to Holdings in such amounts as are necessary to repay in full on the Effective Date the PIK Notes;
(x) the Borrower or Holdings may make up to $5,000,000 of Restricted Payments on, or within 15 days of, the Effective Date to finance the return of capital and accrued interest to participants in the Investment Deferred Compensation Plan of the Borrower and Holdings;
(xi) the Borrower may make Restricted Payments to Holdings in an amount necessary to enable Holdings to make required payments in respect of Disqualified Equity Interests or Subordinated Debt issued by Holdings, provided that (i) such payments are permitted (x) in the Sponsor Preferred Stock payable solely case of Disqualified Equity Interests, by another clause of this Section 6.08 or (y) in additional shares the case of Sponsor Preferred Stock Subordinated Debt, by paragraph (b) of this Section 6.08 and (ii) Holdings promptly applies such proceeds in the manner required by such Disqualified Equity Interests or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingSubordinated Debt;
(vixii) the Borrower or any Restricted Subsidiary may pay cash dividends acquire, redeem or retire any Equity Interests of any other Subsidiary provided that such acquisition, redemption or retirement is permitted pursuant to Allied Waste in order Sections 6.03 and 6.04;
(xiii) notwithstanding any other provision of this Section 6.08 and Section 6.09, with the proceeds of the Tranche B-1 Term Loans funded by the Tranche B-1 Lenders (and not converted) (other than that portion of the Tranche B-1 Term Loans used to permit Allied Waste to pay cash dividends prepay the Original Tranche B Term Loans on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereofRestatement Effective Date) and Allied Waste the Cash Amount, (A) the Borrower may use such declare and pay a dividend to Holdings, (B) Holdings may declare and pay a dividend with respect to common share Equity Interests in Holdings and (C) the Borrower or Holdings may make payments to holders of options to acquire common share Equity Interests in Holdings and holders of restricted share unit awards issued by Holdings, provided that the aggregate amount of dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend and payments in accordance with this clause (vi) are subject to the satisfaction made by each of the following additional conditions on Borrower and Holdings under this paragraph (xiii) shall not exceed $400,000,000, provided further that (x) at the date time of such dividend or payment, no Default shall have occurred and be continuing or would result therefrom and (y) at the time of such dividend or payment and after giving effect thereto, the Borrower complies, on a Pro Forma Basis, with the covenants set out in Sections 6.12 and 6.13; and
(xiv) substantially concurrently with an IPO, and in any event, no later than 30 Business Days following the issue or transfer of Equity Interests pursuant to such IPO, the Borrower may make Restricted Payments to Holdings to the extent necessary to permit Holdings to make the payment of the fees permitted to be paid pursuant to Section 6.09(ix)(B), provided that (A) no Default shall have occurred and be continuing or would result therefrom and (B) at the time of such payment and after giving effect thereto, the Borrower complies, on a Pro Forma Basis, with the covenants set out in Sections 6.12 and 6.13.
(b) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, make or agree to pay or make, directly or indirectly (other than agreeing to customary provisions in respect of repayment and repurchase upon asset sales in any Subordinated Debt Documents), any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Subordinated Debt, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or termination of any Subordinated Debt, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) payment of regularly scheduled interest and principal payments as, in the form of payment and when due in respect of any Subordinated Debt, payments due upon a change of control under any Subordinated Debt or upon acceleration of the maturity of any Subordinated Debt, in each case other than payments in respect of Subordinated Debt prohibited by the subordination provisions thereof;
(ii) refinancings of Indebtedness to the extent permitted by Section 6.01; and
(iii) payment or other distribution in respect of principal or interest on, or payment or other distribution on account of the purchase, redemption, retirement, acquisition, cancelation or termination of, any Subordinated Debt, in each case exchange for, or out of the Net Proceeds of, the substantially concurrent sale of Qualified Equity Interests of Holdings.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Borrower may declare and pay dividends with respect to its capital common stock or Qualified Preferred Stock payable solely in additional shares of its capital stock;
common stock or Qualified Preferred Stock, (ii) Restricted Subsidiaries of (other than those directly owned, in whole or part, by the Borrower Borrower) may declare and pay dividends ratably with respect to their capital common stock;
, (iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay cash dividends in with respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (to its common stock and effect repurchases, redemptions or other capital Restricted Payments with respect to its common stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste together in an aggregate cumulative amount in any fiscal year of the Borrower not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on exceed 50% of Consolidated Net Income (if positive) for the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount immediately preceding fiscal year of $75,000,000 on such Sponsor Preferred Stockthe Borrower; provided in each case that immediately prior and after giving effect to any such payment no Default or Event of Default shall have occurred and be continuing and, immediately after giving effect to any such payment, the Borrower shall have Revolver Availability of more than $100,000,000, (iv) the Borrower may pay cash dividends in an amount not to exceed $60,000,000 in any fiscal year of the Borrower with respect to the Series E Preferred Stock, Series I Preferred Stock or any other Qualified Preferred Stock; provided that (x) immediately prior and after giving effect to any such payment, no Default or Event of Default shall have occurred and be continuing and (y) only so long as a Financial Covenant Effectiveness Period is then occurring, the Consolidated Fixed Charge Coverage Ratio for the period of four consecutive fiscal quarters most recently ended on or prior to the date of such payment, calculated on a pro forma basis as if such payment were made on the last day of such period (and excluding any such payments previously made pursuant to this clause during such four quarter period but attributed for purposes of this calculation to the last day of a prior period which day does not occur in such four quarter period) is not less than the ratio applicable to such period of four fiscal quarters under Section 6.12, (v) the Borrower and the Subsidiaries may make Restricted Payments consisting of the repurchase or other acquisition of shares of, or options to purchase shares of, capital stock
(A) solely with Net Cash Proceeds received by the Borrower from issuances of its common stock after the Third Amendment Effective Date, provided that any such repurchase or redemption is effected within 150 days after the receipt of such proceeds or (B) with other funds available to the Borrower if, immediately after giving effect to any such redemption or repurchase, the Borrower shall have Revolver Availability of more than $100,000,000 or (2) shares of Class A Cumulative Preferred Stock of Rite Aid Lease Management Company with cash and/or a debt-for-equity exchange in an aggregate amount not to exceed $25,000,000 if immediately after giving effect to any such redemption or repurchase, the Borrower shall have Revolver Availability of more than $100,000,000.
(b) The Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(i) payments or prepayments of Indebtedness created under the Senior Loan Documents;
(ii) payments of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted pursuant to Section 6.01(a);
(iii) (A) prepayments of Indebtedness permitted pursuant to Section 6.01(a)(v) or (vi) with the proceeds of Indebtedness permitted pursuant to Section 6.01(a)(v) or (vi) and (B) prepayments of Indebtedness permitted pursuant to Section 6.01(a)(vii) with the proceeds of Indebtedness permitted pursuant to Section 6.01(a)(vii);
(iv) payments of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) provided no Default has occurred and is then continuingcontinuing or would result therefrom, Optional Debt Repurchases of Inside Indebtedness and, to the extent permitted by paragraph (c) of this section, Optional Debt Repurchases of Outside Indebtedness;
(vi) repurchases, exchanges or redemptions of Indebtedness for consideration consisting solely of common stock of the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Qualified Preferred Stock;
(vii) prepayments of Capital Lease Obligations in connection with the sale, closing or relocation of Stores;
(viii) prepayments of Indebtedness in connection with the incurrence of Refinancing Indebtedness permitted pursuant to Section 6.01(a)(ii) or (viii); providedand
(ix) prepayments of Indebtedness permitted pursuant to Section 6.01(a)(iii), however, that all cash dividend payments in accordance with this clause if permitted by the subordination provisions applicable to such Indebtedness.
(vic) are subject to The Borrower and the satisfaction Subsidiaries will not effect Optional Debt Repurchases of the following additional conditions on the date of such dividend payment Outside Indebtedness unless immediately prior and after giving effect thereto:to any such Optional Debt Repurchases, (x) no Default or Event of Default shall have occurred and be continuing and (y) the Borrower shall have Revolver Availability of more than $100,000,000.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notPrior to the Investment Grade Date, neither Limited nor the Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Limited may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital common stock;
, (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
, (iii) Allied Waste Limited may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
, (iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends to Limited at such times and in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, such amounts as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order shall be necessary to permit Allied Waste Limited to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; discharge its permitted liabilities, provided in each case that no if a Default or Event of Default has shall have -------- occurred and is then continuingbe continuing no such dividends may be paid the proceeds of which are used to make any payment in respect of any Guarantee or any Indebtedness of Limited, and (v) Restricted Payments may be made in respect of the Preferred Stock as required thereunder so long as no Default would exist as a result of making such payments.
(b) Prior to the Investment Grade Date, neither Limited nor the Borrower will, nor will they permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents or the Senior Notes;
(viii) the Borrower or payment of regularly scheduled interest and principal payments as and when due in respect of any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; providedIndebtedness, however, that all cash dividend other than payments in accordance with this clause respect of subordinated Indebtedness prohibited by the subordination provisions thereof; (viiii) are subject refinancings of Indebtedness to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:extent permitted by Section 6.01; and
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Holdings nor the Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste Holdings may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stockcommon stock or Current Redeemable Equity;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste Holdings and the Borrower may make the Restricted Payments (A) contemplated by and permitted under Section 6.04(a)(i), so long as, in each instance, immediately prior to, and after giving effect to, such Restricted Payment, no Default shall exist, and (B) Holdings may make Restricted Payments, not exceeding an aggregate amount Payments consisting of $25,000,000 during any fiscal year, Company Notes pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted SubsidiariesStockholders’ Agreement;
(iv) the Borrower or any Restricted Subsidiary may declare pay to Holdings, at such times and make dividend payments to Allied Waste solely in such amounts as shall be necessary, after giving effect to the extent necessary for Allied Waste application by Holdings of any other cash resources available to pay for taxes and it (including Permitted Investments), to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;permit Holdings to
(vA) Allied Waste may declare pay taxes imposed upon it and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock liabilities incidental to its existence (or other capital stockincluding, as provided therein) and at any time after June 30, 2004without limitation, the Borrower premiums of directors’ and officers’ errors and omissions insurance and indemnities owing to officers and directors and expenses in connection with public filings) when due,
(B) pay directors’ fees to its directors and actual operating expenses when due, provided that dividends paid to Holdings for the purpose of paying directors’ fees and actual operating expenses shall not exceed $1,000,000 in any fiscal year,
(C) pay Permitted Management Fees that do not exceed in any fiscal year $1,000,000, plus indemnities and usual and customary out-of-pocket expenses provided for under the Permitted Management Agreement,
(D) pay customary and reasonable fees and expenses in connection with the Effective Date Transactions and other issuances of equity or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided Indebtedness in each case permitted by this Agreement and with Permitted Acquisitions,
(E) make Restricted Payments to be made by Holdings that are permitted by clause (iii) above,
(F) make investments in the Tracker Sub described in clause (k) of the definition of Permitted Investments, and
(G) if at the time thereof and after giving effect thereto no Default or Event of Default has occurred and is then continuing, make payments on Holdings Included Indebtedness, provided that any dividends permitted to be paid to Holdings shall not be paid more than five (5) Business Days prior to the date that Holdings will apply the proceeds of such dividends to the purposes for which such dividends are permitted,
(v) the transfer of the stock of the Tracker Sub described in Section 6.05(f);
(vi) Restricted Payments that are part of the Effective Date Transactions;
(vii) Restricted Payments made with the proceeds of contributions to the capital of the applicable Loan Party not more than five (5) Business Days prior to such Restricted Payments, so long as no Default then exists or would exist after giving effect thereto; and
(b) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any Restricted Subsidiary may pay cash dividends payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to Allied Waste in order the extent permitted by Section 6.01; and
(iv) prepayment or any other repurchase, redemption or repayment of the June 2004 Notes to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause extent permitted by Section 6.14, below; and
(v) hereofpurchase (prior to maturity) or prepayment of Indebtedness (other than Subordinated Indebtedness and Allied Waste may use such dividends to pay cash dividends on Indebtedness under the Sponsor Preferred Stock; providedJune 2004 Notes) so long as immediately prior thereto, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:, no Default exists or would exist, unless such purchase or prepayment is made with the proceeds of contribution to the capital of, as the case may be, Holdings or the Borrower not more than five (5) Business Days prior to such purchase or prepayment, in which case such purchase or prepayment can be so made.
Appears in 1 contract
Samples: Credit Agreement (Argo Tech Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Borrower may declare and pay dividends or other distributions with respect to its capital stock Capital Stock payable solely in additional shares of its capital common stock;
, (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
Capital Stock, (iii) Allied Waste the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its the Restricted Subsidiaries;
, in an aggregate amount not in excess of (A) Equity Proceeds and Conversion Proceeds received after the date hereof and not applied to any other Designated Equity Proceeds Use plus (B) to the extent not made with such Equity Proceeds or Conversion Proceeds, $5,000,000 during any 12-month period and (iv) the Borrower may purchase or otherwise retire any Capital Stock of the Borrower to the extent necessary (as determined in good faith by a majority of the disinterested members of the Board of Directors of the Borrower, whose determination shall be conclusive) to prevent the loss, or to secure the reinstatement, of any material license or franchise held by the Borrower or any Restricted Subsidiary from any Governmental Authority, provided that (A) the Borrower shall notify the Administrative Agent of any purchases or retirements pursuant to clause (iv) preceding in an amount greater than $5,000,000 and (B) such purchases or retirements shall not result in a Material Adverse Effect; provided that the issuance of preferred stock of the Borrower pursuant to the Confirmed Plan of Reorganization and as contemplated in the Disclosure Statement and the accretion of the liquidation preference thereunder shall not be deemed to be the incurrence of an obligation to make a Restricted Payment or the making of a Restricted Payment by the Borrower for purposes of this Section 6.09.
(b) The Borrower will not, nor will it permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, (i) any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or termination of any Indebtedness or New Preferred Stock (it being understood that this Section 6.09(b) shall not be deemed to prohibit the discharge of Indebtedness pursuant to the Confirmed Plan of Reorganization or the existence of provisions as may declare and make dividend payments be contained in future indentures governing unsecured indebtedness issued by the Borrower after the Effective Date substantially similar to Allied Waste solely the provisions contained in Section 4.08 of the Indentures permitting certain holders of Indebtedness of the Borrower to require the repurchase of such Indebtedness following certain sales of assets of the Borrower; provided that no such repurchases under any future indenture shall be effected so long as any Loans, Letters of Credit or Commitments are outstanding under this Agreement) or (ii) any payment to any Derivatives Counterparty as a result of any change in the market value of any such Indebtedness that is publicly traded (provided, that (A) no payment shall be deemed to have been made to any Derivatives Counterparty to the extent necessary for Allied Waste Derivatives Counterparties have made cumulative payments to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste as a result of changes in an aggregate the market value of such publicly traded Indebtedness in a cumulative amount in excess of not more than $75,000,000 the payments made to Derivatives Counterparties by the Borrower and the Restricted Subsidiaries as a result of such changes and (B) it is understood that the intent of the above language relating to payments to and from Derivatives Counterparties is to prohibit payments and distributions pursuant to transactions entered into with Derivatives Counterparties only if the Borrower intends such transactions to have substantially the same economic effect as the payments and distributions referred to in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (vi) above), except:
(i) payment of Indebtedness created under the Loan Documents and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided under the Existing Credit Agreement and the Loan Documents (as defined in each case that no Default or Event of Default has occurred and is then continuingthe Existing Credit Agreement);
(viii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness and payment of regular dividends on New Preferred Stock;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payments to prepay, purchase or redeem the outstanding indebtedness of Greene County Partners, Inc. listed on Schedule 6.02; and
(x) payments to redeem outstanding Indebtedness pursuant to the exercise of certain rights of the holders of such Indebtedness to require the repurchase of such Indebtedness arising in the event of a change in control of the Borrower or any Restricted Subsidiary specified in provisions as may pay cash dividends be contained in future indentures governing unsecured indebtedness issued by the Borrower after the date hereof substantially similar to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction Section 4.07 of each of the following additional conditions on the date of such dividend payment and after giving effect thereto:Indentures.
Appears in 1 contract
Samples: Credit Agreement (McLeodusa Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste Each Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except so long as no Default or Event of Default shall have occurred and be continuing (or shall result from the payment thereof), (i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock, (ii) FCX may pay regularly scheduled quarterly dividends in respect of its preferred stock issued and outstanding on the Effective Date and effect regularly scheduled mandatory redemptions of its preferred stock issued and outstanding on the Effective Date, in each case, to the extent and in the amounts required by the prospectus under which such preferred stock was issued and (iii) FCX may make (A) Restricted Payments in cash in any amounts to the extent that, immediately after giving effect thereto (and giving pro forma effect to the payment of such cash), Liquidity is not less than $250,000,000 and (B) Restricted Payments in cash not otherwise permitted by clause (A), including Restricted Payments made when Liquidity is less than $250,000,000 and Restricted Payments that cause Liquidity to decrease below $250,000,000; provided that no Restricted Payments shall be made pursuant to this clause (B) if, immediately after giving effect thereto (and to any expenditure of cash required thereby), the Restricted Uses would be greater than the Restricted Uses Basket.
(b) Each Borrower will not, nor will it permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities (other than common stock of FCX) or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities (other than common stock of FCX) or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount refinancings of $25,000,000 during any fiscal year, pursuant Indebtedness to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiariesextent permitted by Section 6.01(a);
(iv) payment of secured Indebtedness that becomes due as a result of the Borrower voluntary sale or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to transfer of the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10property or assets securing such Indebtedness;
(v) Allied Waste may declare and pay dividends in respect prepayments of Indebtedness owed to either Borrower by the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any a Restricted Subsidiary may pay cash dividends or owed to Allied Waste in an aggregate cumulative amount a Restricted Subsidiary by another Restricted Subsidiary, provided that prepayments of Indebtedness owed to a Restricted Subsidiary that is not more than $75,000,000 in order a Loan Party shall be permitted only to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that extent no Default or Event of Default has occurred and is then continuing;continuing at the time of such prepayment; and
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends payments of Indebtedness that are not permitted by clauses (i)-(v) of this Section 6.08(b) (I) if immediately prior to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:to such payment of Indebtedness (and giving pro forma effect to any payment of cash in connection with such payment of Indebtedness), Liquidity is not less than $250,000,000 or (II) if the condition described in clause (I) shall not be satisfied, if and to the extent that after giving effect to any such payments, the Restricted Uses would not be greater than the Restricted Uses Basket.
(c) Each Borrower will not, and will not permit any Restricted Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement.
Appears in 1 contract
Samples: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Borrower may declare and pay dividends with respect to its capital common stock or Qualified Preferred Stock payable solely in additional shares of its capital stock;
common stock or Qualified Preferred Stock, (ii) Restricted Subsidiaries of (other than those directly owned, in whole or part, by the Borrower Borrower) may declare and pay dividends ratably with respect to their capital common stock;
, (iii) Allied Waste the Borrower may make declare and pay cash dividends with respect to its common stock and effect repurchases, redemptions or other Restricted PaymentsPayments with respect to its common stock, not exceeding together in an aggregate amount of $25,000,000 during in any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees year of the Borrower not to exceed 50% of Consolidated Net Income (if positive) for the immediately preceding fiscal year of the Borrower; provided that immediately prior and its Restricted Subsidiaries;
after giving effect to any such payment no Default or Event of Default shall have occurred and be continuing and, immediately after giving effect to any such payment, the Borrower shall have Revolver Availability of more than $100,000,000, (iv) the Borrower may pay cash dividends in an amount not to exceed $60,000,000 in any fiscal year of the Borrower with respect to the Series E Preferred Stock, Series I Preferred Stock or any Restricted Subsidiary may declare other Qualified Preferred Stock; provided that (x) immediately prior and make dividend payments after giving effect to Allied Waste solely any such payment, no Default or Event of Default shall have occurred and be continuing and (y) only so long as a Financial Covenant Effectiveness Period is then occurring, the Consolidated Fixed Charge Coverage Ratio for the period of four consecutive fiscal quarters most recently ended on or prior to the extent necessary date of such payment, calculated on a pro forma basis as if such payment were made on the last day of such period (and excluding any such payments previously made pursuant to this clause during such four quarter period but attributed for Allied Waste purposes of this calculation to pay for taxes and the last day of a prior period which day does not occur in such four quarter period) is not less than the ratio applicable to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
such period of four fiscal quarters under Section 6.12, (v) Allied Waste the Borrower and the Subsidiaries may make Restricted Payments consisting of the repurchase or other acquisition of shares of, or options to purchase shares of, capital stock of the Borrower or any of its Subsidiaries from employees, former employees, directors or former directors of the Borrower or any Subsidiary (or their permitted transferees), in each case pursuant to stock option plans, stock plans, employment agreements or other employee benefit plans approved by the board of directors of the Borrower; provided that no Default has occurred and is continuing; and provided further that the aggregate amount of such Restricted Payments made after the Original Restatement Effective Date shall not exceed $10,000,000, (vi) the Subsidiaries may declare and pay cash dividends in respect to the Borrower; provided that the Borrower shall, within a reasonable time following receipt of any such payment, use all of the Sponsor Preferred Stock payable solely proceeds thereof for a purpose set forth in additional shares Section 5.10(b) (including the payment of Sponsor Preferred Stock dividends required or permitted pursuant to this Section 6.08(a)), (or other capital stock, as provided thereinvii) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary and the Subsidiaries may declare and pay cash dividends with respect to Allied Waste the Equity Interests set forth on Schedule 6.08(a) to the extent, and only to the extent, required pursuant to the terms of such Equity Interests or any other agreement in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends effect on the Sponsor Preferred Stock Effective Date and (including on shares theretofore paid viii) so long as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingcontinuing or would result therefrom, the Borrower may redeem or repurchase shares of the Borrower's and/or its Subsidiaries' (including Rite Aid Lease Management Company's) Preferred Stock (A) solely with Net Cash Proceeds received by the Borrower from issuances of its common stock after the Original Restatement Effective Date, provided that any such repurchase or redemption is effected within 150 days after the receipt of such proceeds or (B) with other funds available to the Borrower if, immediately after giving effect to any such redemption or repurchase, the Borrower shall have Revolver Availability of more than $100,000,000.
(b) The Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(i) payments or prepayments of Indebtedness created under the Senior Loan Documents;
(ii) payments of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted pursuant to Section 6.01(a);
(iii) (A) prepayments of Indebtedness permitted pursuant to Section 6.01(a)(v) or (vi) with the proceeds of Indebtedness permitted pursuant to Section 6.01(a)(v) or (vi) and (B) prepayments of Indebtedness permitted pursuant to Section 6.01(a)(vii) with the proceeds of Indebtedness permitted pursuant to Section 6.01(a)(vii);
(iv) payments of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) provided no Default has occurred and is continuing or would result therefrom, Optional Debt Repurchases of Inside Indebtedness and, to the extent permitted by paragraph (c) of this Section, Optional Debt Repurchases of Outside Indebtedness;
(vi) repurchases, exchanges or redemptions of Indebtedness for consideration consisting solely of common stock of the Borrower or any Restricted Subsidiary may pay cash dividends Qualified Preferred Stock;
(vii) prepayments of Capital Lease Obligations in connection with the sale, closing or relocation of Stores;
(viii) prepayments of Indebtedness in connection with the incurrence of Refinancing Indebtedness permitted pursuant to Allied Waste Section 6.01(a)(ii) or (viii); and
(ix) prepayments of Indebtedness permitted pursuant to Section 6.01(a)(iii), if permitted by the subordination provisions applicable to such Indebtedness; and
(x) unless an Event of Default shall have occurred and be continuing, mandatory prepayments of Indebtedness and interest under the Jean Coutu Subordinated Notes (if required by the terms thereof as in order to permit Allied Waste to pay cash dividends xxxxct on the Sponsor Preferred Stock Second Restatement Effective Date), the New Notes and/or the Bridge Facility.
(including on shares theretofore paid as dividends thereon in accordance with clause (vc) hereof) The Borrower and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction Subsidiaries will not effect Optional Debt Repurchases of the following additional conditions on the date of such dividend payment Outside Indebtedness unless immediately prior and after giving effect thereto:to any such Optional Debt Repurchases, (x) no Default or Event of Default shall have occurred and be continuing and (y) the Borrower shall have Revolver Availability of more than $100,000,000.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party shall, nor will it shall any Loan Party permit any of its Restricted Subsidiaries or the LS&Co. Trust to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayments, except that, so long as no Default or incur Event of Default shall have occurred and be continuing at the time of any obligation (contingent action described below or otherwise) to do so, except:
would result therefrom: (i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the U.S. Borrower may declare and pay dividends ratably with respect and distributions payable only in Equity Interests (other than Disqualified Stock) of the U.S. Borrower, (ii) the U.S. Borrower may purchase Equity Interests from present or former employees, directors or other recipients (and their beneficiaries) of such Equity Interests under the U.S. Borrower’s incentive compensation plans and agreements as provided under such plans and agreements for aggregate consideration not to their capital stock;
exceed $20.0 million in any twelve (12) Fiscal Month period, (iii) Allied Waste may make Restricted PaymentsPayments to a U.S. Loan Party, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or Restricted Payments by any Restricted Foreign Subsidiary may declare to any Canadian Loan Party and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare Restricted Payments by any Foreign Subsidiary (other than a Canadian Loan Party) to any Foreign Subsidiary; provided that (i) the requirements of this Section 6.08(a) shall not apply to any Restricted Payment when the Payment Conditions with respect thereto are satisfied and pay dividends in respect the Loan Parties shall have delivered to the Administrative Agent either a certificate of a Financial Officer (with reasonably detailed calculations) certifying satisfaction of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (Payment Conditions or other capital stock, as provided thereinevidence of the same reasonably satisfactory to the Administrative Agent and (ii) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has shall be deemed to have occurred if the Payment Conditions with respect to any Restricted Payment cease to be satisfied based solely on any Restricted Payments made when the Payment Conditions with respect thereto were satisfied.
(b) No Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries or the LS&Co. Trust to, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (collectively, a “prepayment”) any Indebtedness, except (i) the prepayment of the Loans in accordance with the terms of this Agreement, (ii) the prepayment of Indebtedness payable to a U.S. Loan Party, (iii) the prepayment of Indebtedness payable to a Canadian Loan Party by any Foreign Subsidiary, (iv) the prepayment of Indebtedness owed to any Foreign Subsidiary by any Foreign Subsidiary (other than a Canadian Loan Party), (v) the prepayment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is then continuing;
secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of a permitted Disposition, (vi) the Borrower prepayment of Indebtedness, in whole or any Restricted Subsidiary may pay in part, from the net cash dividends to Allied Waste proceeds of (or in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (vexchange for) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Permitted Refinancing Indebtedness,
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Holdings nor the Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste each of Holdings and the Borrower may declare and pay dividends with respect to its capital common stock payable solely in additional shares of its capital 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 of the Borrower may declare and pay dividends ratably with respect to their capital stock, membership or partnership interests or other similar Equity Interests;
(iii) Allied Waste Holdings may purchase or redeem (and the Borrower may declare and pay dividends or make Restricted Paymentsother distributions to Holdings, not exceeding an the proceeds of which are used by Holdings to purchase or redeem) Equity Interests of Holdings acquired by physicians who are party to a Management Services Agreement or employees, consultants or directors of Holdings, the Borrower, any Subsidiary or any Affiliated Practice upon such Person’s death, disability, retirement or termination of employment, provided that the aggregate amount of such purchases or redemptions under this clause (iii) shall not exceed $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries3,000,000;
(iv) the Borrower or any may make Restricted Subsidiary may declare and make dividend payments Payments to Allied Waste Holdings to be used by Holdings solely to the extent necessary for Allied Waste pay its franchise taxes and other fees required to maintain its corporate existence and to pay for taxes general corporate and to pay administrative overhead expenses to conduct (including salaries and other compensation of employees) incurred by Holdings in the ordinary course of its business business, provided that such Restricted Payments shall not exceed $1,000,000 in accordance with Sections 5.01(b) and 6.10;any fiscal year,
(v) Allied Waste the Borrower may declare make Restricted Payments to Holdings in an amount necessary to enable Holdings to pay the Taxes directly attributable to (or arising as a result of) the operations of the Borrower and the Subsidiaries, provided that (A) the amount of such Restricted Payments shall not exceed the amount that the Borrower and the Subsidiaries would be required to pay dividends in respect of Federal, state and local taxes were the Sponsor Preferred Stock payable solely in additional Borrower and the Subsidiaries to pay such taxes as stand-alone taxpayers (including any interest or penalties thereon, if applicable) and (B) all Restricted Payments made to Holdings pursuant to this clause (v) are used by Holdings for the purposes specified herein within 20 days of the receipt thereof;
(vi) Holdings may, not later than five Business Days following the consummation of the Physician Equity Offering, repurchase shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, its common stock from the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an Permitted Investors for aggregate cumulative amount consideration of not more than $75,000,000 10,000,000 using the proceeds of the Physician Equity Offering;
(vii) cashless repurchases of Equity Interests of Holdings deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(viii) the Borrower may make Restricted Payments to Holdings to pay management, consulting and advising fees to the Sponsor or Sponsor Affiliates to the extent permitted by Section 6.09;
(ix) (on or after the date that is five years after the issuance of the applicable Qualified Sponsor Notes) the Borrower may make Restricted Payments to Holdings in order an amount necessary to permit Allied Waste Holdings to pay cash dividends interest (including interest accrued during the previous five fiscal years but only to the extent necessary to avoid significant original issue discount under Section 163(i)(2) of the Code) on the Qualified Sponsor Preferred Stock Notes in an amount not to exceed the Available Amount, provided that (including on shares theretofore paid as dividends thereon in accordance with this clause A) the Borrower has made all prepayments required pursuant to Section 2.11(d) prior to any such payment of interest, (v)B) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
continuing or would result therefrom, (viC) the Borrower or any Restricted Subsidiary may pay cash dividends immediately prior to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect theretoto such payment of interest, the Borrower shall be in compliance with the Interest Expense Coverage Ratio on a pro forma basis as if all interest accruing in respect of such Qualified Sponsor Notes during the period of four fiscal quarters most recently ended had been paid in cash and (D) all Restricted Payments made pursuant to this clause (ix) are used by Holdings for the purposes specified herein within 20 days of receipt thereof;
(x) the Borrower may make Restricted Payments to Holdings in any fiscal year in an amount not to exceed 50% of the Borrower’s Portion of Excess Cash Flow (and Holdings may make Restricted Payments with such amounts), provided that (A) immediately prior to and after giving effect to such Restricted Payment, the Leverage Ratio is less than or equal to 3.25 to 1.00, (B) no Default has occurred and is continuing or would result therefrom and (C) simultaneously with any Restricted Payment made pursuant to this clause (x), the Borrower shall prepay Tranche B Term Borrowings pursuant to clause (a) of Section 2.11 in an aggregate principal amount equal to such Restricted Payment;
(xi) the Borrower may make Restricted Payments to Holdings to pay any non-recurring fees, cash charges and cost expenses incurred in connection with the issuance of Equity Interests or Indebtedness, in each case, only to the extent that such transaction is not consummated;
(xii) payments to former stockholders of the Borrower in connection with the exercise of appraisal rights under applicable law; and
(xiii) the Merger Consideration paid on the Effective Date and the Delayed Equity Payments paid after the Effective Date.
(b) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than (A) payments in respect of the Senior Subordinated Notes, any Additional Subordinated Debt, the Existing Senior Subordinated Notes or the Physician Notes prohibited by the subordination provisions thereof and (B) payments in respect of the Qualified Sponsor Notes except as permitted by clause (ix) of Section 6.08(a);
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) the Delayed Equity Payments.
Appears in 1 contract
Samples: Credit Agreement (St. Louis Pharmaceutical Services, LLC)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their capital stock;
Equity Interests, (iiiii) Allied Waste provided no Default or Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) ; provided that the Borrower amount thereof, taken together with any payments or any Restricted Subsidiary may declare and make dividend payments transfers of cash, assets or debt securities pursuant to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)d) and Allied Waste may use such dividends to pay cash dividends of Section 6.09, do not exceeding an aggregate amount of exceed $75,000,000 on such Sponsor Preferred Stock; 5,000,000 in any fiscal year, (iii) provided in each case that no Default or Event of Default has occurred is continuing or would result therefrom, the Borrower may make Restricted Payments to the Ultimate Parent in an aggregate amount per fiscal year not to exceed the Borrower’s Portion of Excess Cash Flow for the immediately preceding fiscal year less the amount of other Designated Excess Cash Expenditures made with such Borrower’s Portion of Excess Cash Flow for such immediately preceding fiscal year; provided that the proceeds of such Restricted Payments are used (x) to effect Specified Investments, (y) to pay interest on Restructuring Notes or Additional Notes or (z) at any time on or after the second anniversary of the Closing Date and so long as the Ultimate Parent Leverage Ratio is less than or equal to 3.00 to 1.00, to effect repurchases of Restructuring Notes or Additional Notes (provided, however, that any such dividends or distributions relating to any such cash interest payment must be paid not earlier than ten Business Days prior to the date when such cash interest is required to be paid by the Ultimate Parent and the proceeds must (except to the extent prohibited by applicable subordination provisions) be applied by the Ultimate Parent to the payment of such interest when due), (iv) Restricted Payments in amounts as shall be necessary to make Tax Payments; provided that all Restricted Payments made pursuant to this clause (iv) are used by the Ultimate Parent for the purpose specified in this clause (iv) within 30 days of receipt thereof, (v) provided no Default or Event of Default is continuing or would result therefrom, the Borrower may from time to time pay cash dividends or distributions to the Ultimate Parent in an amount not in excess of the regularly scheduled cash interest payable on the Restructuring Notes (or any Additional Notes incurred to refinance such Restructuring Notes) during the next period of ten Business Days, provided, however, that (A) any such dividends or distributions relating to any such cash interest payment must be paid not earlier than ten Business Days prior to the date when such cash interest is required to be paid by the Ultimate Parent and the proceeds must (except to the extent prohibited by applicable subordination provisions) be applied by the Ultimate Parent, to the payment of such interest when due, (B) to the extent the amount of any such dividend or distribution together with the aggregate amount of other dividends or distributions made pursuant to this clause (v) during the then continuingcurrent fiscal year exceeds the Ultimate Parent Annual Cash Interest Amount for such fiscal year, such excess amount shall (x) reduce the amount of Restricted Payments permitted pursuant to clause (iii) above the amount of Optional Repurchases of other Indebtedness permitted under Section 6.08(b)(vi) and the amount of Investments permitted under Sections 6.04(f) and (l), in each case, during the following fiscal year of the Borrower based on the Borrower’s Portion of Excess Cash Flow with respect to the Excess Cash Flow in respect of the then current fiscal year and (y) only be permitted to be paid to the extent Restricted Payments are not otherwise permitted to be paid under this Section for such purpose at such time and to the extent such amount does not exceed the amount of the anticipated Borrower’s Portion of Excess Cash Flow with respect to the Excess Cash Flow in respect of the then current fiscal year of the Borrower (to be calculated and evidenced in a manner reasonably satisfactory to the Administrative Agent) and (C) the Borrower and its Subsidiaries shall be in Pro Forma Compliance after giving effect to the payment of any such dividends or distributions pursuant to this clause (v), (vi) the Borrower may make Restricted Payments to the Ultimate Parent, and the Ultimate Parent may, in turn, make such Restricted Payments as part of the Shared Services Transactions and (vii) provided no Default or Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments to the Ultimate Parent in an aggregate amount not to exceed $5,000,000 during any fiscal year of the Borrower.
(b) The Borrower will not, and will not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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 Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of subordinated Indebtedness to the extent prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) prepayment of Capital Lease Obligations in an aggregate cumulative amount from and after the Closing Date not exceeding $5,000,000;
(vi) provided no Default or Event of Default is continuing or would result therefrom, Optional Repurchases of other Indebtedness involving cumulative expenditures in any fiscal year not in excess of an amount equal to the Borrower’s Portion of Excess Cash Flow for the immediately preceding fiscal year less the amount of other Designated Excess Cash Expenditures made with such Borrower’s Portion of Excess Cash Flow for such immediately preceding fiscal year;
(vii) payment of any Indebtedness owing to the Service Company arising pursuant to the Shared Services Transactions; and
(viii) payment of any Indebtedness owing to the Borrower or any Subsidiary Loan Party.
(c) the Borrower will not, and will not permit any Subsidiary to, furnish any funds to, make any Investment in, or provide other consideration to any other Person for purposes of enabling such Person to, or otherwise permit any such Person to, make any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on Payment or other payment or distribution restricted by this Section that could not be made directly by the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon Borrower in accordance with clause the provisions of this Section.
(vd) hereofNotwithstanding anything to the contrary in this Agreement or the other Loan Documents, the Loan Parties shall be permitted to make all distributions required to be made by the Loan Parties on or after the Closing Date (as defined in the Reorganization Plan) pursuant to the Reorganization Plan and Allied Waste may use such dividends to pay cash dividends the Confirmation Order, in each case as in effect on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Closing Date.
Appears in 1 contract
Samples: Credit Agreement (DEX ONE Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste No Loan Party will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (ia) Allied Waste the Borrower and Parent may declare and pay dividends with respect to its capital common stock payable solely in additional shares of its capital common stock;
, (iib) Restricted so long as no Default exists or would arise as a result thereof, Subsidiaries of the Borrower may declare and pay dividends ratably with respect to the holders of their capital stock;
Equity Interests, (iiic) Allied Waste the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Subsidiaries, (d) so long as no Default exists or would arise as a result thereof, the Parent may make other Restricted Subsidiaries;
Payments with respect to (ivi) the Borrower Parent’s common stock and (ii) repurchases, redemptions or other buybacks of Parent’s common stock, in an aggregate amount not to exceed $12,500,000 during any Restricted Subsidiary may declare fiscal year; provided, that, with respect to each of clauses (a) through (d) above, such Person and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct Persons holding its business Equity Interests are in accordance compliance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect Section 7-80-606 of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock Colorado Revised Statutes, (e) so long as no Default exists or other capital stock, would arise as provided therein) and at any time after June 30, 2004a result thereof, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste the Parent in an amount sufficient to allow the Parent to pay (i) reasonable audit and other accounting expenses incurred in the ordinary course of business, (ii) Taxes due and payable by the Parent to any taxing authority and reasonable expenses incurred in connection with preparation of related Tax returns and filings, (iii) reasonable and necessary expenses (including professional fees and expenses) incurred by the Parent in connection with (A) registration, public offerings and exchange listing of equity securities and maintenance of the same, (B) compliance with reporting obligations under, or in connection with compliance with, federal or state securities laws, and (C) indemnification and reimbursement of directors, officers and employees in respect of liabilities relating to their serving in any such capacity, or obligations in respect of director and officer insurance (including premiums therefor), (iv) Restricted Payments with respect to (A) the Parent’s common stock and (B) repurchases, redemptions or other buybacks of Parent’s common stock pursuant to clause (d) above in an aggregate cumulative amount of not more than to exceed $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause 12,500,000 during any fiscal year, and (v)) other reasonable expenses incurred by Parent in the ordinary course of business, and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that (f) so long as no Default exists or Event of Default has occurred and is then continuing;
would arise as a result therefrom, (vii) the Borrower or any Restricted Subsidiary may pay make cash dividends to Allied Waste the Parent in order an amount sufficient to permit Allied Waste allow the Parent to pay cash dividends on make the Sponsor Preferred Stock Permitted Dividend Payment and (including on shares theretofore paid as dividends thereon in accordance with clause (vii) hereof) and Allied Waste the Parent may use such dividends to pay cash dividends on make the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Permitted Dividend Payment.
Appears in 1 contract
Samples: Credit Agreement (Natural Grocers by Vitamin Cottage, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Holdings nor the Borrower will, nor will it they permit any of its other Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur enter into any obligation (contingent or otherwise) transaction the economic effect of which is substantially similar to do soany Restricted Payment, except:
except (i) Allied Waste Holdings and the Borrower may declare and pay dividends with respect to its their capital stock payable solely in additional shares of its capital their respective common stock;
, (ii) Restricted Subsidiaries of (other than the Borrower Borrower) may declare and pay dividends ratably with respect to their capital stock;
, (iii) Allied Waste Holdings may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 3,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of Holdings and the Borrower and its Restricted Subsidiaries;
; (iv) so long as no Default shall have occurred and be continuing or result from the making of such payment, the Borrower or any Restricted Subsidiary may declare pay dividends to Holdings at such times and make dividend payments in such amounts as shall be necessary to Allied Waste solely permit Holdings to discharge, to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct permitted hereunder, its business in accordance with Sections 5.01(b) and 6.10;
permitted liabilities; (v) Allied Waste on and after the Leverage Target Date, Holdings may declare and pay dividends in cash with respect to its convertible preferred stock outstanding as of the Sponsor Preferred Stock payable solely Amendment No. 4 Effective Date in additional shares of Sponsor Preferred Stock an amount not exceeding $40,000,000 in any fiscal year and the Borrower may declare and pay dividends to Holdings to permit Holdings to declare and pay such dividends and (or other capital stock, as provided thereinvi) and at any time after June 30, 2004the consummation of the Structured Note Financing, the Borrower or any Restricted Subsidiary may declare and pay cash dividends a dividend to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on Holdings so long as (x) the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that dividend shall not exceed the principal amount of the Structured Note Bridge Indebtedness outstanding at the time such dividend is paid plus accrued interest thereon, (y) no Default or Event of Default has occurred and is continuing or would result therefrom and (z) immediately upon receipt thereof, Holdings shall apply all of the proceeds of such dividend to repay in full the Structured Note Bridge Indebtedness then continuing;outstanding.
(vib) Neither Holdings nor the Borrower or will, nor will they permit any Restricted Subsidiary may pay cash dividends to Allied Waste to, make, directly or indirectly, any voluntary payment or other distribution (whether in order to permit Allied Waste to pay cash dividends cash, securities or other property) of or in respect of principal of or interest on the Sponsor Preferred Stock any High Yield Notes, any Qualifying Holdings Debt or any Qualifying Borrower Indebtedness (collectively "Specified Indebtedness"), or any voluntary payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction account of the following additional conditions on purchase, redemption, retirement, acquisition, 112 cancellation or termination of any Specified Indebtedness (or enter into any transaction the date economic effect of such dividend payment which is substantially similar to any of the foregoing), except, provided no Default has occurred and after giving effect thereto:is continuing or would result therefrom, payments of regularly scheduled interest as and when due in respect of any Specified Indebtedness other than Qualifying Borrower Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Williams Communications Group Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it the Borrower permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do soif at the time of, exceptand after giving effect to, such proposed Restricted Payment:
(i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no a Default or Event of Default has shall have occurred and is then be continuing;,
(viii) the Borrower could not Incur at least $1.00 of additional Indebtedness pursuant to Section 6.01(a), or
(iii) the aggregate amount of such Restricted Payment and all other Restricted Payments declared or made since the Effective Date (the amount of any Restricted Payment, if made other than in cash, to be based upon Fair Market Value) would exceed an amount equal to the sum of (without duplication):
(1) 50% of the aggregate amount of Consolidated Net Income accrued during the period (treated as one accounting period) from the beginning of the fiscal quarter during which the Effective Date occurs to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which internal financial statements are available (or if the aggregate amount of Consolidated Net Income for such period shall be a deficit, minus 100% of such deficit), plus
(2) Capital Stock Sale Proceeds, net cash capital contributions and the Fair Market Value of Property (other than Indebtedness) contributed in respect of the Borrower’s Equity Interests (other than Disqualified Preferred Stock) subsequent to the Effective Date, plus
(3) the sum of:
(A) the aggregate net cash proceeds and the Fair Market Value of Property (other than Indebtedness) received by the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends from the issuance or sale after the Effective Date of convertible or exchangeable Indebtedness that has been converted into or exchanged for Equity Interests (other than Disqualified Preferred Stock) of the Borrower, and
(B) the aggregate amount by which Indebtedness (other than Subordinated Obligations) of the Borrower or any Subsidiary is reduced on the Sponsor Borrower’s consolidated balance sheet on or after the Effective Date upon the conversion or exchange of any Indebtedness issued or sold on or prior to the Effective Date that is convertible or exchangeable for Equity Interests (other than Disqualified Preferred Stock (including on shares theretofore paid as dividends thereon Stock) of the Borrower, excluding, in accordance with the case of clause (vA) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause or (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:B):
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so (it being understood and agreed that the Borrower and the Restricted Subsidiaries shall be permitted to agree to pay or make a Restricted Payment, or incur any obligation (contingent or otherwise) to do so, so long as the actual payment or making of such Restricted Payment is contingent upon (x) receipt of the consent therefor (via a waiver or amendment to this Section 6.08(a)) from the requisite number of Lenders in accordance with Section 9.02 or (y) the Commitments having expired or been terminated and the principal of and interest on each Loan and all fees, expenses and other amounts payable (other than contingent amounts not yet due) under any Loan Document having been paid in full and all Letters of Credit having expired or been terminated (or otherwise having become subject to cash collateralization or other arrangements reasonably satisfactory to the Administrative Agent and the Issuing Bank (including in respect of fees that would otherwise be payable in connection with such Letters of Credit pursuant to the terms of this Agreement), and the Issuing Bank having released the Revolving Lenders from their participation obligations with respect to all such Letters of Credit) and all LC Disbursements having been reimbursed), except:
(i) Allied Waste the Restricted Subsidiaries may declare and pay dividends and make other distributions ratably with respect to its capital stock payable solely in additional shares of its capital stocktheir Equity Interests;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably or make other distributions with respect to their capital stockits Equity Interests payable solely in shares of Qualified Equity Interests;
(iii) Allied Waste the Borrower may make Restricted PaymentsPayments for the repurchase, not exceeding an retirement or other acquisition or retirement for value of Equity Interests, or options or rights to acquire Equity Interests, of the Borrower held by any future, present or former employee, director or consultant of the Borrower or any of the Restricted Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement; provided, however, that the aggregate amount of $25,000,000 during Restricted Payments made under this clause (iii) shall not exceed in any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees calendar year of the Borrower and its Restricted Subsidiaries$3,000,000 (with unused amounts in any calendar year being carried over to succeeding calendar years, provided that such carried-over amounts shall not exceed $10,000,000 in the aggregate for the term of this Agreement);
(iv) concurrently with any issuance of Qualified Equity Interests, the Borrower may redeem, purchase or retire any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to Equity Interests of the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10Borrower using the proceeds of, or convert or exchange any Equity Interests of the Borrower for, such Qualified Equity Interests;
(v) Allied Waste the Borrower may declare and pay dividends the merger consideration contemplated under the Investment Agreement in respect of the Sponsor Preferred Stock payable solely in additional shares Acquisition (regardless of Sponsor Preferred Stock (or other capital stock, as provided thereinwhen paid) and at any time after June 30, 2004, adjust the Borrower or any Restricted Subsidiary may pay cash dividends exercise price of options and the number of shares subject to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on restricted stock units as contemplated by the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingInvestment Agreement;
(vi) the Borrower or any Restricted Subsidiary may (A) pay cash dividends in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof (it being understood, for purposes of clarity, that (1) the payment of cash in lieu of fractional Equity Interests as consideration and (2) payments to Allied Waste dissenting stockholders pursuant to applicable law, in order each case in connection with a Permitted Acquisition or any other acquisition by the Borrower or a Restricted Subsidiary permitted hereunder shall not constitute a Restricted Payment prohibited by this Section), (B) receive or accept the return to permit Allied Waste the Borrower or any Restricted Subsidiary of Equity Interests of the Borrower or any Restricted Subsidiary constituting a portion of the purchase price consideration in settlement of indemnification claims and (C) make payments in the form of Qualified Equity Interests of the Borrower in connection with the conversion of convertible Equity Interests permitted to pay be issued hereunder (provided that, in connection with any such conversion, the Borrower may make cash dividends on payments in lieu of fractional Equity Interests in connection with any such conversion);
(vii) to the Sponsor extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted under Section 6.03 (other than any such transaction that involves a Person that is not a wholly-owned Subsidiary of the Borrower immediately prior to such transaction), provided that any Restricted Payment made pursuant to this clause (vii) may be made only to the Borrower or to a Restricted Subsidiary that is a wholly-owned Subsidiary of the Borrower;
(viii) the Borrower may make any Restricted Payment in the form of Qualified Equity Interests in connection with the conversion of Series B Preferred Stock or any other convertible securities, in each case permitted to be issued hereunder;
(ix) the Borrower or any Restricted Subsidiary may make repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(x) the Borrower may make any Restricted Payment made in connection with the withholding of Equity Interests of the Borrower or other withholdings to allow any future, present or former employee, director or consultant of the Borrower or any Restricted Subsidiary to meet his or her tax withholding obligations that arise in connection with an award pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement;
(xi) so long as no Default has occurred and is continuing or would result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount not to exceed the sum of (A) $10,000,000 (less (x) the aggregate amount of prepayments or repayments of Indebtedness made pursuant to clause (iv)(A) of Section 6.08(b) and (y) the aggregate amount of payments made pursuant to clause (xiii)(B) of this Section 6.08(a)) and (B) the amount of Cumulative Excess Cash Flow that is Not Otherwise Applied so long as immediately after giving effect to such Restricted Payment (including the incurrence of any Indebtedness in connection therewith), the Total Leverage Ratio shall not be greater than 2.00 to 1.00 and the Borrower shall have delivered to the Administrative Agent a certificate of its Financial Officer to such effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with the Total Leverage Ratio test set forth in this clause (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificate of a Financial Officer required to be delivered by Section 5.01(a) or (b) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA for the relevant period);
(xii) the Borrower may effect the certificate of designation in respect of the Series B Preferred Stock (it being understood and agreed that this clause (xii) shall not permit the Borrower to make any Restricted Payments under such certificate of designation or otherwise in respect of the Series B Preferred Stock);
(xiii) the Borrower may (A) issue non-cash rights to the extent distributed in connection with any stockholder rights plan of the Borrower and (B) purchase, repurchase or otherwise acquire for value any non-cash rights distributed in connection with any stockholder rights plan of the Borrower, provided that the aggregate amount of payments made pursuant to this clause (xiii)(B) shall not exceed $500,000 for the term of this Agreement; and
(xiv) the Borrower may accrue dividends in respect of its Series A Preferred Stock and Series B Preferred Stock (it being understood and agreed that this clause (xiv) shall not permit the Borrower to make any Restricted Payments in respect of such Series A Preferred Stock or Series B Preferred Stock, as the case may be).
(b) The Borrower will not, nor will it permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness under any Subordinated Debt Document or any other Indebtedness required to be subordinated to the Obligations pursuant to the terms hereof, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on shares theretofore paid account of the purchase, redemption, retirement, acquisition, cancelation or termination of any such Indebtedness, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing (it being understood and agreed that (1) in determining whether any payment by the Borrower or a Restricted Subsidiary would qualify as dividends thereon a payment that has a substantially similar effect to any of the foregoing, the Borrower shall be permitted to consult with the Administrative Agent prior to the making of any such payment and request that the Administrative Agent make a determination as to whether such payment would be deemed to be restricted by this Section 6.08(b), and the good faith determination of the Administrative Agent in that regard shall be definitive and (2) the Borrower and the Restricted Subsidiaries shall be permitted to agree to pay or make any such payment or other distribution so long as the actual payment or making of such payment or distribution is contingent upon (x) receipt of the consent therefor (via a waiver or amendment to this Section 6.08(b)) from the requisite number of Lenders in accordance with Section 9.02 or (y) the Commitments having expired or been terminated and the principal of and interest on each Loan and all fees, expenses and other amounts payable (other than contingent amounts not yet due) under any Loan Document having been paid in full and all Letters of Credit having expired or been terminated (or otherwise having become subject to cash collateralization or other arrangements reasonably satisfactory to the Administrative Agent and the Issuing Bank (including in respect of fees that would otherwise be payable in connection with such Letters of Credit pursuant to the terms of this Agreement), and the Issuing Bank having released the Revolving Lenders from their participation obligations with respect to all such Letters of Credit) and all LC Disbursements having been reimbursed), except:
(i) payment of regularly scheduled interest and principal (or accreted value, if applicable) payments as, in the form of payment and when due in respect of any such Indebtedness, other than payments in respect of any such Indebtedness prohibited by the subordination provisions thereof;
(ii) refinancings of any such Indebtedness to the extent permitted by Section 6.01;
(iii) the consummation of the Existing Indebtedness Refinancing;
(iv) so long as no Default has occurred and is continuing, repayments or prepayments of any such Indebtedness in an aggregate amount not to exceed the sum of (A) $10,000,000 (less (x) the aggregate amount of Restricted Payments made pursuant to clause (xi)(A) of Section 6.08(a) and (y) the aggregate amount of payments made pursuant to clause (xiii)(B) of Section 6.08(a)) and (B) the amount of Cumulative Excess Cash Flow that is Not Otherwise Applied so long as immediately after giving effect to such repayment or prepayment (including the incurrence of any Indebtedness in connection therewith), the Total Leverage Ratio shall not be greater than 2.00 to 1.00 and the Borrower shall have delivered to the Administrative Agent a certificate of its Financial Officer to such effect, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with the Total Leverage Ratio test set forth in this clause (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificate of a Financial Officer required to be delivered by Section 5.01(a) or (b) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA for the relevant period);
(v) hereof) and Allied Waste may use payments of Indebtedness permitted under Section 6.01(a)(iii), except to the extent that any such dividends to pay cash dividends on payments are prohibited by the Sponsor Preferred Stocksubordination provisions thereof; provided, however, that all cash dividend payments in accordance with this clause and
(vi) are subject payments in the form of Qualified Equity Interests in connection with the conversion of convertible Indebtedness permitted to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:be incurred hereunder.
Appears in 1 contract
Samples: Credit Agreement (Palm Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Borrower may declare and pay dividends with respect to its capital common stock or Qualified Preferred Stock payable solely in additional shares of its capital stock;
common stock or Qualified Preferred Stock, (ii) Restricted Subsidiaries of (other than those directly owned, in whole or part, by the Borrower Borrower) may declare and pay dividends ratably with respect to their capital common stock;
, (iii) Allied Waste the Borrower may make declare and pay cash dividends with respect to its common stock and effect repurchases, redemptions or other Restricted PaymentsPayments with respect to its common stock, not exceeding together in an aggregate amount of $25,000,000 during in any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees year of the Borrower not to exceed 50% of Consolidated Net Income (if positive) for the immediately preceding fiscal year of the Borrower; provided that immediately prior and its Restricted Subsidiaries;
after giving effect to any such payment no Default or Event of Default shall have occurred and be continuing and, immediately after giving effect to any such payment, the Borrower shall have Revolver Availability of more than $100,000,000, (iv) the Borrower may pay cash dividends in an amount not to exceed $60,000,000 in any fiscal year of the Borrower with respect to the Series E Preferred Stock, Series I Preferred Stock or any Restricted Subsidiary may declare other Qualified Preferred Stock; provided that (x) immediately prior and make dividend payments after giving effect to Allied Waste solely any such payment, no Default or Event of Default shall have occurred and be continuing and (y) only so long as a Financial Covenant Effectiveness Period is then occurring, the Consolidated Fixed Charge Coverage Ratio for the period of four consecutive fiscal quarters most recently ended on or prior to the extent necessary date of such payment, calculated on a pro forma basis as if such payment were made on the last day of such period (and excluding any such payments previously made pursuant to this clause during such four quarter period but attributed for Allied Waste purposes of this calculation to pay for taxes and the last day of a prior period which day does not occur in such four quarter period) is not less than the ratio applicable to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
such period of four fiscal quarters under Section 6.12, (v) Allied Waste the Borrower and the Subsidiaries may make Restricted Payments consisting of the repurchase or other acquisition of shares of, or options to purchase shares of, capital stock of the Borrower or any of its Subsidiaries from employees, former employees, directors or former directors of the Borrower or any Subsidiary (or their permitted transferees), in each case pursuant to stock option plans, stock plans, employment agreements or other employee benefit plans approved by the board of directors of the Borrower; provided that no Default has occurred and is continuing; and provided further that the aggregate amount of such Restricted Payments made after the Original Restatement Effective Date shall not exceed $10,000,000, (vi) the Subsidiaries may declare and pay cash dividends in respect to the Borrower; provided that the Borrower shall, within a reasonable time following receipt of any such payment, use all of the Sponsor Preferred Stock payable solely proceeds thereof for a purpose set forth in additional shares Section 5.10(b) (including the payment of Sponsor Preferred Stock dividends required or permitted pursuant to this Section 6.08(a)), (or other capital stock, as provided thereinvii) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary and the Subsidiaries may declare and pay cash dividends with respect to Allied Waste the Equity Interests set forth on Schedule 6.08(a) to the extent, and only to the extent, required pursuant to the terms of such Equity Interests or any other agreement in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends effect on the Sponsor Preferred Stock Effective Date and (including on shares theretofore paid viii) so long as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingcontinuing or would result therefrom, the Borrower may redeem or repurchase shares of the Borrower’s and/or its Subsidiaries’ (including Rite Aid Lease Management Company’s) Preferred Stock (A) solely with Net Cash Proceeds received by the Borrower from issuances of its common stock after the Original Restatement Effective Date, provided that any such repurchase or redemption is effected within 150 days after the receipt of such proceeds or (B) with other funds available to the Borrower if, immediately after giving effect to any such redemption or repurchase, the Borrower shall have Revolver Availability of more than $100,000,000.
(b) The Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(i) payments or prepayments of Indebtedness created under the Senior Loan Documents;
(ii) payments of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted pursuant to Section 6.01(a);
(iii) prepayments of Indebtedness permitted pursuant to clause (vii), (viii) or (ix) of Section 6.01(a) with the proceeds of Indebtedness permitted pursuant to clause (vii), (viii) or (ix) of Section 6.01(a);
(iv) payments of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) provided no Default has occurred and is continuing or would result therefrom, Optional Debt Repurchases of Inside Indebtedness and, to the extent permitted by paragraph (c) of this Section, Optional Debt Repurchases of Outside Indebtedness;
(vi) repurchases, exchanges or redemptions of Indebtedness for consideration consisting solely of common stock of the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Qualified Preferred Stock;
(vii) prepayments of Capital Lease Obligations in connection with the sale, closing or relocation of Stores;
(viii) prepayments of Indebtedness in connection with the incurrence of Refinancing Indebtedness permitted pursuant to Section 6.01(a)(ii) or (x);
(ix) prepayments of Indebtedness permitted pursuant to Section 6.01(a)(iii), if permitted by the subordination provisions applicable to such Indebtedness; providedand
(x) unless an Event of Default shall have occurred and be continuing, however, that all cash dividend payments in accordance with this clause mandatory prepayments of Indebtedness and interest under the New Notes and/or the Bridge Facility.
(vic) are subject to The Borrower and the satisfaction Subsidiaries will not effect Optional Debt Repurchases of the following additional conditions on the date of such dividend payment Outside Indebtedness unless immediately prior and after giving effect thereto:to any such Optional Debt Repurchases, (x) no Default or Event of Default shall have occurred and be continuing and (y) the Borrower shall have Revolver Availability of more than $100,000,000.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Borrower may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital common stock;
, (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
, provided that no distribution referred to in this clause (ii) shall be permitted to be made by any Special Purpose Subsidiary if any Default or Event of Default shall have occurred and be continuing or would result therefrom, (iii) Allied Waste if no Event of Default has occurred and is continuing or would result therefrom, the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 10,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
, (iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that if no Default or Event of Default has occurred and is then continuingcontinuing or would result therefrom, (A) the Borrower may make Restricted Payments to Holdings to fund, as and when due, payments of regularly scheduled cash dividends on Existing Preferred Stock (and Holdings may pay such dividends with the proceeds of such Restricted Payments to it), provided no such Restricted Payment shall be made by the Borrower more than 15 days prior to the payment date for any such cash dividend on Existing Preferred Stock; and (B) the Borrower may make Restricted Payments to Holdings to fund, as and when due, payments in respect of taxes, audit fees, directors and officers insurance premiums and other administrative expenses incurred by Holdings (to the extent fairly allocable to the business of the Borrower and the Subsidiaries rather than the business of the Unrestricted Subsidiaries) in an aggregate amount not to exceed $3,000,000 (or such higher amount as the Administrative Agent may agree) during any fiscal year of the Borrower, (v) if no Event of Default has occurred and is continuing or would result therefrom, the Borrower may make Restricted Payments to Holdings for the purpose of enabling Holdings to repurchase or redeem shares of Series A Preferred Stock or other Capital Stock of Holdings, and Holdings may use the proceeds of such Restricted Payments to effect repurchases or redemptions of Series A Preferred Stock or other Capital Stock of Holdings, provided that (A) immediately after giving effect to any such Restricted Payment and related repurchase or redemption, (x) Current Liquidity is not less than $100,000,000 and (y) Holdings, the Borrower and the Subsidiaries are in Pro Forma Compliance with the Financial Covenants and (B) the amount of such Restricted Payments paid to Holdings for the purpose of repurchasing or redeeming Capital Stock other than the Series A Preferred Stock shall not in any event exceed $25,000,000 in the aggregate and (vi) if no Event of Default has occurred and is continuing or would result therefrom, the Borrower may make Restricted Payments to Holdings to fund, as and when due, payments of regularly scheduled interest and principal in respect of any Qualifying Subordinated Indebtedness incurred by Holdings that is permitted by Section 6.01(a), other than payments prohibited by the subordination provisions thereof.
(b) Holdings and the Borrower will not, and will not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness (including regularly scheduled rent payments in respect of any Capital Lease Obligations) permitted by
Section 6.01 (a), other than payments in respect of the subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01(a);
(iv) payment of secured Indebtedness permitted by Section 6.01(a) that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) returns of deposits or advances in the ordinary course of business;
(vi) payments under Guarantees of obligations of Persons other than Holdings, the Borrower and the Subsidiaries that are permitted under Section 6.01; and
(vii) repurchases, retirements, redemptions or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock prepayments of Existing Subordinated Notes or Senior Notes, provided that (including on shares theretofore paid as dividends thereon in accordance with clause x) no Event of Default has occurred and is continuing or would result therefrom, (vy) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:, Holdings, the Borrower and the Subsidiaries are in Pro Forma Compliance with the Financial Covenants and (z) immediately after giving effect thereto (and to the payment of any amounts required to be paid in connection therewith), Current Liquidity is not less than $100,000,000.
Appears in 1 contract
Samples: Credit Agreement (Triton PCS Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Borrower will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Borrowers may declare and pay dividends with respect to its capital their common stock payable solely in additional shares of its capital stock;
common stock and in cash to the extent after giving effect thereto the Borrowers will remain in compliance with Section 7.12, and (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stockEquity Interests.
(b) No Borrower will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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 Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) with the prior written consent of the Administrative Agent, payment of Indebtedness permitted by Section 7.01 with the proceeds of the issuance of Equity Interests;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount payment of $25,000,000 during regularly scheduled interest and principal payments as and when due in respect of any fiscal year, pursuant Indebtedness (subject to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiariesany subordination agreements);
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(bprepayment of Indebtedness permitted by Section 7.01 provided that (A) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing; (B) the making of such prepayment will not result in the occurrence of a Default or Event of Default after giving effect thereto; and (C) except as to prepayment of the Indebtedness permitted by Section 7.01(l), the Administrative Agent has given its prior written consent, which consent shall not be unreasonably withheld;
(v) refinancings of Indebtedness to the extent permitted by Section 7.01; and
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid payment of secured Indebtedness that becomes due as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction a result of the following additional conditions on voluntary sale or transfer of the date of property or assets securing such dividend payment and after giving effect thereto:Indebtedness.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Loan Party to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (ia) Allied Waste the Borrower and Parent may declare and pay dividends with respect to its capital common stock payable solely in additional shares of its capital common stock;
, (iib) Restricted so long as no Default or Event of Default exists or would arise as a result thereof, subject to Section 6.12(b), Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
Equity Interests, (iiic) Allied Waste the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
; provided, that, with respect to each of clauses (iva) – (c) above, such Person and the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct Persons holding its business Equity Interests are in accordance compliance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect Section 7-80-606 of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock Colorado Revised Statutes, and (or other capital stock, d) so long as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) exists or would arise as a result thereof, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste the Parent in order an amount sufficient to permit Allied Waste allow the Parent to pay cash dividends on (i) reasonable audit and other accounting expenses incurred in the Sponsor Preferred Stock ordinary course of business, (ii) Taxes due and payable by the Parent to any taxing authority and reasonable expenses incurred in connection with preparation of related Tax returns and filings, (iii) reasonable and necessary expenses (including on shares theretofore paid as dividends thereon professional fees and expenses) incurred by the Parent in accordance connection with clause (vA) hereofregistration, public offerings and exchange listing of equity securities and maintenance of the same, (B) compliance with reporting obligations under, or in connection with compliance with, federal or state securities laws, and Allied Waste may use (C) indemnification and reimbursement of directors, officers and employees in respect of liabilities relating to their serving in any such dividends to pay cash dividends on capacity, or obligations in respect of director and officer insurance (including premiums therefor), and (iv) other reasonable expenses incurred by Parent in the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause ordinary course of business (vi) are subject to the satisfaction Section 6(h) of the following additional conditions on the date of such dividend payment and after giving effect thereto:Parent Guaranty).
Appears in 1 contract
Samples: Credit Agreement (Natural Grocers by Vitamin Cottage, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste such Borrower and its Restricted Subsidiaries may declare and pay dividends with respect to its capital stock Equity Interests payable solely in additional shares of its capital stockEquity Interests;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stockEquity Interests;
(iii) Allied Waste may make to the extent constituting Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Parent Borrower and its Restricted Subsidiaries;Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.05 or 6.09; CREDIT AGREEMENT, Page 97
(iv) repurchases by Parent Borrower of partial interests in its Equity Interests for nominal amounts which are required to be repurchased in connection with the Borrower exercise of stock options or any Restricted Subsidiary may declare and make dividend payments warrants to Allied Waste solely to permit the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10issuance of only whole shares of Equity Interests;
(v) Allied Waste the Parent Borrower may declare and pay dividends in respect for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Sponsor Preferred Stock payable solely in additional shares Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of Sponsor Preferred Stock (management, employee or other capital stock, as provided therein) and at any time after June 30, 2004, consultant of the Parent Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default exists or would result, (B) the aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with Restricted Payments made under this clause (v)) in any fiscal year does not exceed (x) $3,000,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from each of the immediately preceding four fiscal years (not including any fiscal year ending prior to 2010) which was not expended by Parent Borrower for Restricted Payments in such fiscal years (the “Carryover Amount” and Allied Waste may use in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (v) in such dividends fiscal year) plus (z) an amount equal to pay the cash dividends not exceeding an aggregate amount proceeds from the sale of $75,000,000 on Equity Interests to directors, officers, members of management, employees or consultants of the Parent Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingfiscal year;
(vi) the repurchase of Equity Interests of the Parent Borrower that occurs upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower accepting such options or warrants as satisfaction of the exercise price of such Equity Interests;
(vii) such Borrower and its Subsidiaries may make any Restricted Payment in connection with the Rothsay Acquisition as contemplated by the Rothsay Acquisition Agreement;
(viii) repurchase of Equity Interests deemed to occur upon the non-cash exercise of Equity Interests to pay taxes;
(ix) the Parent Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount that, together with (A) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(a)(ix) after the date hereof, (B) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof and (C) the aggregate amount of all payments or distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(b)(v) after the date hereof, shall not exceed the Available Amount; provided that as of the date of any such Restricted Payment and after giving effect thereto no Default shall exist or result therefrom; and
(x) the Parent Borrower may make additional Restricted Payments; provided that (A) no Default shall exist or result therefrom and (B) if the Total Leverage Ratio on a Pro Forma Basis as of the end of the most recent fiscal quarter for which financial statements were required to be delivered under Section 5.01(a) or (b) is greater than 2.25 to 1.00, then the aggregate amount of Restricted Payments made under this clause (x) in respect of a fiscal year (including the Restricted Payment in question) shall not at any time exceed (A) 25% of the Consolidated Net Income of the Parent Borrower and its Restricted Subsidiaries for the immediately preceding fiscal year minus (B) the amount of Investments made pursuant to Section 6.04(y)(ii) during such fiscal year (which amount shall not be less than zero).
(b) Such Borrower will not, nor will it permit any of its Restricted Subsidiaries to, make any payment, directly or indirectly, in respect of any purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness or any Restricted Subsidiary may pay cash dividends to Allied Waste Indebtedness issued in order to permit Allied Waste to pay cash dividends lieu of or representing a refinancing or replacement of any Indebtedness in respect of the Pari Passu Notes outstanding on the Sponsor Preferred Stock Effective Date (but, for the avoidance of doubt not the Pari Passu Notes existing on the Effective Date themselves) (such Indebtedness, collectively, “Restricted Indebtedness”), or any other payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted Indebtedness or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) refinancings of Restricted Indebtedness to the extent permitted by Section 6.01;
(ii) (A) any payment or other distribution in respect of principal or interest on, or payment or other distribution on shares theretofore paid account of the purchase, redemption, retirement, acquisition, cancellation or termination of, Restricted Indebtedness, in each case in exchange for, or out of the net proceeds of, the substantially concurrent sale of Equity Interests (other than Disqualified Equity Interests and so long as dividends thereon no Change of Control would result therefrom) of the Parent Borrower, or (B) the conversion of any Restricted Indebtedness to Equity Interests (other than Disqualified Equity Interests).
(iii) payments or other distributions in accordance respect of the purchase, redemption, retirement, acquisition, cancellation or termination of, Restricted Indebtedness, in an aggregate amount not to exceed $25,000,000; provided that (x) at the time of any such payment or other distribution, no Default shall have occurred and be continuing or would result therefrom and (y) at the time of such payment or other distribution and after giving effect thereto and to any borrowing in connection therewith, the Parent Borrower is in compliance, on a pro forma basis, with clause the Financial Covenants;
(viv) hereofpayments or other distributions in respect of principal or interest on, or payment or other distribution on account of the purchase, redemption, retirement, acquisition, cancellation or termination of, Restricted Indebtedness, if on a Pro Forma Basis the Secured Leverage Ratio as of the end of the most recent fiscal quarter for which financial statements were required to be delivered under Section 5.01(a) or (b) is less than the greater of (A) 2.75 to 1.00 and Allied Waste may use (B) 0.50 to 1.00 less than the applicable Secured Leverage Ratio under the Financial Covenants for the most recently ended fiscal quarter for which financial statements have been delivered at the time of such dividends payment or other distribution, and in each case, the Parent Borrower has delivered to pay cash dividends on the Sponsor Preferred Stock; providedAdministrative Agent a certificate of a Financial Officer, however, that together with all cash dividend payments in accordance relevant financial information reasonably requested by the Administrative Agent demonstrating compliance with this clause (viiv);
(v) are subject to the satisfaction payments or other distributions in respect of the following additional conditions on purchase, redemption, retirement, acquisition, cancellation or termination of, Restricted Indebtedness, in an aggregate amount that, together with (A) the aggregate amount of all other such payments or other distributions made by the Parent Borrower and its Restricted Subsidiaries pursuant to this Section 6.08(b)(v) after the date hereof, (B) the aggregate amount of all other Restricted Payments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.08(a)(ix) after the date hereof and (C) the aggregate amount of all Investments made by the Parent Borrower and its Restricted Subsidiaries pursuant to Section 6.04(y)(i) after the date hereof, shall not exceed the Available Amount; provided that as of the date of any such dividend payment payments or distribution and after giving effect thereto:thereto no Default shall exist or result therefrom. Notwithstanding the foregoing, the making of any dividend, payment or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend, payment or other distribution or giving of the redemption notice, as applicable, will not be prohibited if, at the date of declaration or notice such dividend, payment or other distribution or redemption would have complied with the terms of this Agreement.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted 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:
(i) Allied Waste each Subsidiary of the Borrower may declare make Restricted Payments to the Borrower, and pay dividends with respect to its capital stock payable solely in additional shares any Subsidiaries of its capital stockthe Borrower that are Guarantors;
(ii) Restricted Subsidiaries each Non-Guarantor Subsidiary of the Borrower may declare and pay dividends ratably with respect make Restricted Payments to their capital stockany Excluded Subsidiary of the Borrower;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted each other Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(iv) payments by Borrower to Allied Waste solely to repurchase or redeem qualified capital stock of the extent necessary Borrower held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of Borrower or any of its Subsidiaries, upon their death, disability, retirement, severance or termination of employment or service; provided, that the aggregate cash consideration paid for Allied Waste to pay for taxes all such redemptions and to pay administrative expenses to conduct its business repurchases shall not exceed, in accordance with Sections 5.01(b) and 6.10any Fiscal Year, $3,000,000;
(v) Allied Waste may declare if at the time thereof and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time immediately after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that giving effect thereto no Default or Event of Default has shall have occurred and is then continuing;be continuing or would result therefrom, the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those options, warrants or other similar rights, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of options, warrants or similar rights; provided that the aggregate cash consideration paid for all such repurchases, redemptions or acquisitions shall not exceed, in any Fiscal Year, $3,000,000; and
(vi) the Borrower and its Subsidiaries may make Permitted Restricted Payments;
(b) The Borrower will not, nor will it permit any of the Subsidiaries to, prepay, redeem, purchase, defease or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject otherwise satisfy prior to the satisfaction scheduled maturity thereof in any manner, or make any payment in violation of any subordination agreements with respect to, or subordination terms of, any Indebtedness, except:
(i) prepayments of Indebtedness arising under the following additional conditions on Loan Documents;
(ii) prepayments of Indebtedness owed to any Loan Party; and
(iii) if at the date of such dividend payment time thereof and immediately after giving effect thereto:thereto no Default or Event of Default shall have occurred and be continuing or would result therefrom, prepayments of Indebtedness permitted under Section 6.01.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste No Loan Party will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (ia) Allied Waste the Borrower and Parent may declare and pay dividends with respect to its capital common stock payable solely in additional shares of its capital common stock;
, (iib) Restricted so long as no Default exists or would arise as a result thereof, Subsidiaries of the Borrower may declare and pay dividends ratably with respect to the holders of their capital stock;
Equity Interests, (iiic) Allied Waste the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
, (ivd) the Borrower so long as no Default exists or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, would arise as provided therein) and at any time after June 30, 2004a result thereof, the Borrower and Parent may repurchase, redeem, or any Restricted Subsidiary otherwise buy back shares of Parent’s common stock in an aggregate amount not to exceed $10,000,000; provided, that, with respect to each of clauses (a) through (d) above, such Person and the Persons holding its Equity Interests are in compliance with Section 7-80-606 of the Colorado Revised Statutes, and (e) so long as no Default exists or would arise as a result thereof, the Borrower may pay cash dividends to Allied Waste the Parent in an amount sufficient to allow the Parent to pay (i) reasonable audit and other accounting expenses incurred in the ordinary course of business, (ii) Taxes due and payable by the Parent to any taxing authority and reasonable expenses incurred in connection with preparation of related Tax returns and filings, (iii) reasonable and necessary expenses (including professional fees and expenses) incurred by the Parent in connection with (A) registration, public offerings and exchange listing of equity securities and maintenance of the same, (B) compliance with reporting obligations under, or in connection with compliance with, federal or state securities laws, and (C) indemnification and reimbursement of directors, officers and employees in respect of liabilities relating to their serving in any such capacity, or obligations in respect of director and officer insurance (including premiums therefor), (iv) repurchases of shares of Parent’s common stock pursuant to clause (d) above in an aggregate cumulative amount of not more than to exceed $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) 10,000,000, and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereofother reasonable expenses incurred by Parent in the ordinary course of business.
(e) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject Schedule 2.01 to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Credit Agreement is hereby amended to read as set forth in Exhibit A attached hereto.
Appears in 1 contract
Samples: Credit Agreement (Natural Grocers by Vitamin Cottage, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste Unless either the Leverage Test or the Ratings Test shall be satisfied at such time and would remain satisfied after giving effect to such payment or distribution, the Parent will not, nor and will it not permit any of its Restricted 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:
except (i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
, (iiiii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, so long as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has shall have occurred and be continuing at the time of such payment and no Default would occur as a result of making such payment, (A) the Parent may make Restricted Payments to the extent that the aggregate amount of all such Restricted Payments in the current fiscal quarter, taken together with the aggregate amount of all such Restricted Payments in respect of such Restricted Payments in the three fiscal quarters immediately preceding such fiscal quarter, is then continuingnot in excess of $100,000,000 plus 25% of Adjusted Consolidated Net Income for the four fiscal quarter period ending most recently prior to the time any such Restricted Payment is made and (B) the Parent may pay regular dividends or distributions in respect of preferred stock issued after the date hereof, and (iii) notwithstanding the limitation in subsection (ii) above, so long as no Default or Event of Default shall have occurred and be continuing at the time of a repurchase and no Default or Event of Default would occur as a result of making that repurchase, the Parent may repurchase its capital stock to the extent that the aggregate amount since August 4, 2004, of all such payments in respect of such repurchases shall not exceed $500,000,000, in addition to any repurchases allowed under subsection (ii) above. For purposes of clause (ii) above, “Adjusted Consolidated Net Income” for any period shall mean the sum, without duplication, for such period of Consolidated Net Income plus any special one-time or extraordinary non-cash charges deducted in calculating such Consolidated Net Income.
(b) Unless either the Leverage Test or the Ratings Test shall be satisfied at such time and would remain satisfied upon making such payment or distribution, the Borrower and the Parent will not, and will not permit any of their respective Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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 Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(viii) payment of regularly scheduled interest payments and scheduled or mandatory principal payments as and when due in respect of any Indebtedness, other than payments in respect of subordinated debt prohibited by the Borrower subordination provisions thereof, and payments made to the Parent or any Restricted Subsidiary may pay cash dividends by Securitization Entities in respect of subordinated Indebtedness incurred pursuant to Allied Waste any Securitization;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) repayments of Indebtedness of acquired Persons or businesses in order to permit Allied Waste to pay cash dividends on connection with and substantially simultaneously with the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause consummation of Permitted Acquisitions or Permitted Other Acquisitions; and
(v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, payment of secured Indebtedness that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction becomes due as a result of the following additional conditions on voluntary sale or transfer of the date of property or assets securing such dividend payment and after giving effect thereto:Indebtedness.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Parent, CCI and the Borrower will not, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Parent may declare and pay dividends with respect to its capital stock Capital Stock payable solely in additional shares of its capital stock;
common stock or Non-Cash Pay Preferred Stock, (ii) Restricted Subsidiaries of (other than the Borrower and CCI) may declare and pay dividends and make distributions ratably with respect to any Class of their capital stock;
Capital Stock, (iii) Allied Waste the Parent may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former directors, management or employees of the Borrower Parent and its the Restricted Subsidiaries, in an aggregate amount not in excess of (A) Equity Proceeds and Conversion Proceeds received after the date hereof and within 90 days of such Restricted Payment and not applied to any other Designated Equity Proceeds Use plus (B) to the extent not made with such Equity Proceeds or Conversion Proceeds, $2,000,000 during any fiscal year, (iv) so long as no Event of Default exists or would result therefrom, the Parent may pay regular required cash dividends on New Preferred Stock and (v) so long as no Default exists or would result therefrom, the Borrower may pay cash dividends to CCI, and CCI may pay cash dividends to the Parent, at such times and in such amounts as may be necessary to permit the Parent to make payment of regular required cash dividends on New Preferred Stock and the Parent and CCI to service their Indebtedness permitted hereunder and pay their other liabilities incurred in the ordinary course of business.
(b) The Parent, CCI and the Borrower will not, nor will they permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on 101 96 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 Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of subordinated debt prohibited by the subordination provisions thereof, provided that any payment of interest accruing under the ATX Note shall be made only with common stock of the Parent;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01 and 6.02;
(iv) payment of secured Indebtedness that becomes due as a result of the Borrower casualty, condemnation, voluntary sale or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to transfer of the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10property or assets securing such Indebtedness;
(v) Allied Waste may declare payment of Indebtedness with Equity Proceeds received after the date hereof and pay dividends in respect within 90 days of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or such payment and not applied to any other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingDesignated Equity Proceeds Use;
(vi) payment of intercompany Indebtedness among the Loan Parties; and
(vii) payment of Indebtedness under Hedging Agreements in connection with the termination (including early termination) of such Hedging Agreements by the Parent, the Borrower or a Restricted Subsidiary in the ordinary course of business.
(c) The Parent, CCI and the Borrower will not, nor will they permit any Restricted Subsidiary may pay cash dividends to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic Purchase Agreement related to Allied Waste in order any Equity Interest, the payments required to permit Allied Waste be made by the Parent, CCI, the Borrower or the Restricted Subsidiaries thereunder are limited to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore amounts permitted to be paid as dividends thereon Restricted Payments under paragraph (a) of this Section 6.09, (ii) in accordance with clause (v) hereof) and Allied Waste may use such dividends the case of any Synthetic Purchase Agreement related to pay cash dividends on any Restricted Indebtedness, the Sponsor Preferred Stock; providedpayments required to be made by the Parent, howeverCCI, that all cash dividend payments in accordance with this clause (vi) the Borrower or the Restricted Subsidiaries 102 97 thereunder are subject limited to the satisfaction amount permitted under paragraph (b) of this Section 6.09 and (iii) in the case of any Synthetic Purchase Agreement, the obligations of the following additional conditions Parent, CCI, the Borrower and the Restricted Subsidiaries thereunder are subordinated to the Obligations on terms satisfactory to the Administrative Agent.
(d) The Parent, CCI and the Borrower will not, nor will they permit any Restricted Subsidiary to, make any payment of Indebtedness under the Senior Unsecured Facility other than with Equity Proceeds or the proceeds of a Permitted Parent Financing.
(e) Unless there is no outstanding Indebtedness under the Senior Unsecured Facility at such time, the Parent and the Borrower will prepay all Indebtedness under the ATX Note not later than the date that is 270 days prior to the stated maturity of the ATX Note.
(f) Promptly after receiving any Net Proceeds from borrowings under the Senior Unsecured Facility or from any other component of the Initial Permitted Financing, the Parent and CCI shall either contribute such dividend payment and after giving effect thereto:Net Proceeds to the common equity of the Borrower and/or loan such Net Proceeds to the Borrower on a subordinated basis evidenced by a promissory note pledged pursuant to the Pledge Agreement.
Appears in 1 contract
Samples: Credit Agreement (Corecomm LTD /De/)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste No Loan Party will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste each of the Borrowers and its Subsidiaries may declare and pay dividends with respect to its capital stock Stock payable solely in additional shares Stock (other than Disqualified Stock) and (ii) so long as there exists no Event of Default, the Borrower may pay dividends or make distributions to its capital stockequity holders in an aggregate amount not greater than the amount necessary for such equity holders to pay the highest marginal effective rate of federal, state and local income tax liabilities in respect of income earned by the Borrower and its Subsidiaries after deducting any unused prior losses of the Borrower and its Subsidiaries since the Effective Date. By way of example, if in the period from the Effective Date to the end of 2017, the Borrower and its subsidiaries have operating losses of $1,000,000, during 2018 the Borrower and its subsidiaries have operating losses of $5,000,000 and during 2019 the Borrower and its subsidiaries have an operating income of $10,000,000, no Restricted Payments would be permitted pursuant to the foregoing clause (a)(ii) for 2017 and 2018, and Restricted Payments permitted pursuant to the foregoing clause (a)(ii) for 2019 would be limited to equity holders’ actual state and U.S. federal income tax liabilities in respect of $4,000,000 of income earned by the Borrower and its Subsidiaries.
(b) No Loan Party will make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) Restricted Subsidiaries 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 Borrower may declare and pay dividends ratably with respect to their capital stockSubordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount refinancings of $25,000,000 during any fiscal year, pursuant Indebtedness to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiariesextent permitted by Section 6.01;
(iv) commencing with May 15, 2020, on May 15 of each year, distributions or other restricted payments in the Borrower or any Restricted Subsidiary may declare and make dividend payments amount of all Excess Cash Flow that is not required to Allied Waste solely be applied to the extent necessary for Allied Waste repay Term Loans pursuant to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;Section 2.08(c); and
(v) Allied Waste may declare and pay dividends in respect payment of secured Indebtedness that becomes due as a result of the Sponsor Preferred Stock payable solely in additional shares voluntary sale or transfer of Sponsor Preferred Stock (the property or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use assets securing such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject Indebtedness to the satisfaction extent such sale or transfer is permitted by the terms of the following additional conditions on the date of such dividend payment and after giving effect thereto:Section 6.05.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Holdings nor the Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Holdings may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital common stock;
, (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
, (iii) Allied Waste the Borrower may pay management fees to Granaria or any of its Affiliates in an aggregate amount not to exceed $1,750,000 during any fiscal year and reimburse Granaria or any of its Affiliates for their reasonable out-of-pocket expenses relating to their management of Holdings, (iv) the Borrower or any Subsidiary may make Restricted Payments, not exceeding in an aggregate amount of not to exceed $25,000,000 1,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans of employees or directors who terminate their employment with the Borrower or such Subsidiary, (v) the Borrower may make Restricted Payments to Holdings at such times and in such amounts as shall be necessary to permit Holdings to (A) pay Preferred Dividends to the extent permitted by clause (vi) of this Section 6.08(a) and (B) discharge its permitted liabilities (other than in respect of the Existing Preferred Stock or Refinancing Preferred Stock) during any fiscal year and (vi) Holdings may (1) make Restricted Payments for the purpose of purchasing, redeeming or refinancing the Existing Preferred Stock solely with the proceeds of Refinancing Preferred Stock issued pursuant to Section 6.01(c) or common Equity Interests (it being understood and agreed that any shares of Existing Preferred Stock purchased or redeemed pursuant to this clause (vi) shall immediately be canceled by the Borrower) and (2) declare and pay Preferred Dividends, provided that, immediately prior to and immediately after giving effect to such payment of Preferred Dividends, (x) no Default shall have occurred or be continuing as of such date and (y) the Leverage Ratio shall not exceed 3.00 to 1.00 as of such date.
(b) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other benefit plans distribution (whether in cash, securities or other property) of or in connection with incentive respect of principal of or compensation arrangements for current interest on any Indebtedness, or former management any payment or employees other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the Borrower purchase, redemption, retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and its Restricted Subsidiariesprincipal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the Borrower voluntary sale or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to transfer of the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10property or assets securing such Indebtedness;
(v) Allied Waste may declare and pay dividends payments in respect of the Sponsor Preferred Stock payable solely in additional shares repurchase of Sponsor Preferred Stock Subordinated Debt that remains outstanding after the Effective Date (or other capital stock, as provided therein) it being understood and at agreed that any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends Subordinated Debt purchased pursuant to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v) shall immediately be canceled by the Borrower)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) prepayment of the Borrower or Industrial Revenue Bonds;
(vii) prepayment of BV Loans in an aggregate principal amount of up to $5,000,000; provided that no Event of Default shall have occurred and be continuing; and
(viii) payments in respect of any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon Permitted Receivables Financing in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction terms of the following additional conditions on the date of such dividend payment and after giving effect thereto:Permitted Receivables Documents.
Appears in 1 contract
Samples: Credit Agreement (Epmr Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Loan Parties will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except as long as no Default or incur any obligation (contingent Event of Default exists or otherwise) would reasonably be expected to do so, except:
result therefrom (i) Allied Waste the Subsidiaries of the Lead Borrower may declare and pay dividends with respect to its their capital stock payable solely in additional shares to any Loan Party which is a parent of its capital stock;
such Subsidiary (other than to the Rite Aid East Coast Subsidiaries) whether or not a Default or Event of Default exists, and (ii) Restricted Subsidiaries the Loan Parties may pay the Kmart Dividend to Kmart Corporation in each fiscal year to the extent legally required pursuant to the terms of the existing Kmart Agreement; provided (A) no Kmart-Related Default or Event of Default under Section 8.1(a) then exists, and (B) such Kmart Dividend is legally declared and lawful under applicable law and is not declared until after March 20 in any fiscal year, and (iii) the Lead Borrower may declare and pay cash dividends ratably with respect on its public common capital stock and/or repurchase its public common capital stock and/or redeem preferred stock at a $.01 purchase price per share pursuant to their capital stock;
the Shareholder Rights Plan in bona fide arms length transactions, provided that (A) the aggregate amount of such Restricted Payments under this subsection (iii) Allied Waste may make Restricted Paymentswill not exceed, not exceeding an aggregate amount in the aggregate, as of the incurrence of such payment or purchase, the sum of (1) $25,000,000 during any fiscal yearplus (2) 25% of Consolidated Net Income, pursuant after deducting payments to 119 minority interests and in accordance with accruals relating thereto since the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees Closing Date, of the Lead Borrower and its Subsidiaries for each fiscal quarter from the Closing Date through the date of such payment or purchase; and (B) only if both before and after giving effect to such Restricted Subsidiaries;
Payment under this subsection (iv) the Borrower iii), Excess Availability shall be equal to or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more greater than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions 40,000,000 on the date of such dividend Restricted Payment and on a pro forma basis for the twelve-month period immediately succeeding such Restricted Payment.
(b) The Loan Parties will not, and will not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash securities or other property) of or in respect of principal of or interest on any 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 Indebtedness, except: (i) payment of regularly scheduled interest and after giving effect thereto:principal payments as and when due in respect of any Indebtedness to the extent such payments are permitted by Section 7.1; and (ii) refinancings of Indebtedness described in clause (i), above, to the extent permitted by Section 7.1.
Appears in 1 contract
Samples: Credit Agreement (Footstar Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste each Borrower may declare and pay dividends with respect to its capital stock Equity Interests payable solely in additional shares of its capital stock;
Equity Interests, (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends or other distributions ratably with respect to their capital stock;
Equity Interests, (iii) Allied Waste so long as there exists no Default or Event of Default, the Borrowers may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments pursuant to 119 and in accordance with the stock Equity Interest option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower Borrowers and its Restricted their Subsidiaries;
, (iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, so long as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that there exists no Default or Event of Default has and the Company is a “flow through” or “disregarded” entity for United States federal income tax purposes, the Company may pay dividends or make distributions to its members in an aggregate amount not greater than the amount necessary for such members (or, if any such member is a “flow through” or “disregarded” entity for United States federal income tax purposes, the members of such member) to pay their actual state and United States federal, state and local income tax liabilities in respect of income earned by the Borrowers, and (v) the Company shall be permitted to pay dividends and distributions; provided, that such dividends and distribution shall only be permitted if (1) there exists no Default or Event of Default, (2) the Fixed Charge Coverage Ratio for the Borrowers (after giving effect to such dividend and distribution) would not be less than 1.25 to 1 for the most recently completed twelve month period assuming that for purposes of calculating the Fixed Charge Coverage Ratio for such period (calculated on a pro forma basis in a manner acceptable to the Administrative Agent) such dividends and distributions occurred on the first day of such applicable period, and is then continuing(3) immediately after giving effect to the payment of any such dividends and distributions and for the next succeeding twelve month period, Availability will not be less than the greater of (i) $25,000,000 or (ii) 10% of the US Revolving Commitments at such time, in each case, on a pro forma basis (calculated in a manner acceptable to the Administrative Agent and assuming all past due accounts payable of the Borrowers have been paid in full in cash at the time of such payment and no accounts payable of the Borrowers are allowed to become past due during such twelve month period thereafter).
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(viii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Borrower Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.1;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on transfer of the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause property or assets securing such Indebtedness; and
(v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stockrepayments or repurchases of Senior Notes; provided, however, that all cash dividend payments in accordance with this clause (vi1) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and immediately after giving effect thereto:to such repayment or repurchase and for the next succeeding twelve month period, Availability will not be less than the greater of (i) $25,000,000 or (ii) 10% of the US Revolving Commitments at such time, in each case, on a pro forma basis (calculated in a manner acceptable to the Administrative Agent and assuming all past due accounts payable of the Borrowers have been paid in full in cash at the time of such payment and no accounts payable of the Borrowers are allowed to become past due during such twelve month period thereafter), and (2) the Fixed Charge Coverage Ratio for the Borrowers (after giving effect to such repayment or repurchase) would not be less than 1.0 to 1 for the most recently completed twelve month period assuming that for purposes of calculating the Fixed Charge Coverage Ratio for such period (calculated on a pro forma basis in a manner acceptable to the Administrative Agent) such repayment or repurchase occurred on the first day of such applicable period.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Alamosa Delaware nor the Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Alamosa Delaware may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital common stock;
, (ii) Restricted Subsidiaries of (other than the Borrower Borrower) may declare and pay dividends ratably with respect to their capital stock;
Capital Stock; provided, that no distribution referred to in this clause (ii) shall be permitted to be made by any Special Purpose Subsidiary unless such distribution is in cash or in shares of its common Capital Stock pledged under the Pledge Agreement and no Default or Event of Default shall have occurred and be continuing or would result therefrom, (iii) Allied Waste Alamosa Delaware may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 1,000,000 during any fiscal year, year pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former directors, management or employees of the Borrower Alamosa Delaware and its Restricted Subsidiaries, (iv) at a time, in the case of both (x) and (y) below, when there does not exist a Default (or such distribution would not cause a Default), the Borrower may make distributions to Alamosa Delaware for the sole purpose of, and in an amount sufficient to fund, the payment of (x) principal at scheduled maturity and (y) interest when due as scheduled, in each case in respect of the 127/8% Senior Discount Notes and the 12 1/2% Senior Notes; provided, in the case of both (x) and (y), that such payment is due or to become due within 30 days from the date of such distribution and the cash distributed is in fact utilized to meet such payment obligation, (v) if no Default has occurred and is continuing, the Borrower may pay dividends to Alamosa Delaware and Alamosa Delaware may pay dividends, in each case at such times and in such amounts, not exceeding the lesser of (A) $1,000,000 and (B) $50,000,000 minus the amount of all other Permitted Equity Proceeds Uses at such time, during any fiscal year as shall be necessary to permit each of Alamosa Delaware, APCS and Superholdings to discharge its permitted liabilities, (vi) if no Default has occurred and is continuing, Alamosa Delaware, the Borrower and the other Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to exceed $50,000,000 minus the amount of all other Permitted Equity Proceeds Uses at such time and (vii) Restricted Payments may be made on the Effective Date as necessary to consummate the Transactions.
(b) Neither Alamosa Delaware nor the Borrower will, nor will they permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments not more than 30 days prior to the date on which such payments become due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the Borrower voluntary sale or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to transfer of the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10property or assets securing such Indebtedness;
(v) Allied Waste may declare the exchange, in a registered public offering, for the 12 1/2% Senior Notes of senior notes of Alamosa Delaware in an equivalent principal amount having the same terms and pay dividends in respect conditions as the 12 1/2% Senior Notes;
(vi) payment of intercompany Indebtedness (A) among the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock Borrower and the Subsidiary Loan Parties, (or other capital stock, as provided thereinB) and at any time after June 30, 2004, by Alamosa Delaware to the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock Loan Party and (including on shares theretofore paid as dividends thereon in accordance with this clause (v)C) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that if no Default or Event of Default has occurred and is then continuing;
(vi) , by the Borrower or any Restricted Subsidiary may pay cash dividends Loan Party to Allied Waste Alamosa Delaware; and
(vii) payment of Indebtedness under any Hedging Agreements permitted under Section 6.07 in order to permit Allied Waste to pay cash dividends on connection with the Sponsor Preferred Stock termination (including on shares theretofore paid as dividends thereon in accordance with clause (vearly termination) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Hedging Agreements in the ordinary course of business.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Holdings nor the Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Holdings may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital common stock;
, (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
, (iii) Allied Waste provided no Event of Default is continuing or would result therefore, Holdings and the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of Holdings, the Borrower and its Restricted Subsidiaries;
; provided that the amount thereof, taken together with any payments or transfers of cash, assets or debt securities pursuant to clause (f) of Section 6.09, do not exceed $15,000,000 in any fiscal year, (iv) provided no Event of Default is continuing or would result therefrom, the Borrower or may pay dividends to Holdings at any Restricted Subsidiary time in such amounts as may declare and make dividend payments be necessary to Allied Waste solely to the extent necessary for Allied Waste permit Holdings to pay for taxes its expenses and to pay administrative expenses to conduct its business liabilities incurred in accordance with Sections 5.01(b) and 6.10;
the ordinary course (other than payments in respect of Indebtedness or Restricted Payments), (v) Allied Waste may declare and pay dividends in respect provided no Event of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (Default is continuing or other capital stock, as provided therein) and at any time after June 30, 2004would result therefrom, the Borrower may make Restricted Payments to Holdings, and Holdings may, in turn, make such Restricted Payments to the Parent (x) if the Leverage Ratio (determined on a pro forma basis after giving effect to such Restricted Payment) as of the last day of the period of four consecutive fiscal quarters most recently ended on or any prior to the date of such Restricted Subsidiary may pay cash dividends Payment is less than 4.00 to Allied Waste 1.00 or (y) otherwise, in an aggregate cumulative amount not to exceed 50% of Quarterly Excess Cash Flow with respect to each fiscal quarter of the Borrower ending on or after September 30, 2007 in which Quarterly Excess Cash Flow is greater than $0 minus 100% of the absolute value of Quarterly Excess Cash Flow with respect to each fiscal quarter of the Borrower ending on or after September 30, 2007 in which Quarterly Excess Cash Flow is less than $0 minus the amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance any other Designated Excess Cash Expenditures made with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
Quarterly Excess Cash Flow, (vi) the Borrower or any Restricted Subsidiary may pay cash dividends Payments in amounts as shall be necessary to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stockmake Tax Payments; provided, however, provided that all cash dividend payments in accordance with Restricted Payments made pursuant to this clause (vi) are subject used by the Parent or Holdings for the purpose specified in this clause (vi) within 30 days of receipt thereof, (vii) provided no Event of Default is continuing or would result therefrom, the Borrower may from time to time pay cash dividends to Holdings and Holdings may, in turn, use the proceeds thereof to pay cash dividends to the satisfaction Parent, in each case in an amount not in excess of the following additional conditions regularly scheduled cash interest payable during the next period of 30 days on any Qualifying Parent Indebtedness (including Base Ultimate Parent QPI and Base Parent QPI), provided, however, that (A) any such dividends relating to any such cash interest payment must be paid not earlier than 30 days prior to the date when such cash interest is required to be paid by the Parent or the Ultimate Parent, as applicable, and the proceeds must (except to the extent prohibited by applicable subordination provisions) be applied by the Parent or the Ultimate Parent, as applicable, to the payment of such interest when due, (B) no payment of dividends may be made pursuant to this clause (vii) in respect of Indebtedness of the Parent or Ultimate Parent, as applicable, unless at the time of the incurrence of such Indebtedness (other than Base Parent QPI or Base Ultimate Parent QPI outstanding on the date of such dividend payment Closing Date), and after giving effect thereto, the QPI Issuance Conditions were satisfied, (C) no dividends may be made pursuant to this clause (vii) in respect of the Indebtedness described in clause (a)(ii) of the definition of Existing Parent Indebtedness and (D) the Borrower and its Subsidiaries shall be in Pro Forma Compliance after giving effect to the payment of any such dividends pursuant to this clause (vii) and (viii) provided no Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments to Holdings, and Holdings may, in turn, make such Restricted Payments to the Parent in an aggregate amount not to exceed $10,000,000 during any fiscal year of the Borrower.
(b) The Parent, Holdings and the Borrower will not, nor will they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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 Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Senior Subordinated Debt, Permitted Subordinated Indebtedness, Qualifying Parent Indebtedness, Non-Cash Pay Debt or other subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) prepayment of Capital Lease Obligations in an aggregate cumulative amount from and after the Closing Date not exceeding $5,000,000;
(vi) provided no Event of Default is continuing or would result therefrom, Optional Repurchases of other Indebtedness (x) if the Leverage Ratio (determined on a pro forma basis after giving effect to such Optional Repurchase) as of the last day of the period of four consecutive fiscal quarters most recently ended on or prior to the date of such Optional Repurchase is less than 4.00 to 1.00 or (y) involving cumulative expenditures in any fiscal year not in excess of an amount equal to the Borrower’s Portion of Excess Cash Flow for the immediately preceding fiscal year less the amount of other Designated Excess Cash Expenditures made with such Borrower’s Portion of Excess Cash Flow;
(vii) provided no Event of Default is continuing or would result therefrom, Optional Repurchases of other Indebtedness made with Designated Equity Proceeds;
(viii) redemptions of the Senior Unsecured Notes and the Senior Subordinated Notes contemplated by Section 4.01(b); and
(ix) provided no Event of Default is continuing or would result therefrom, Optional Repurchases of other Indebtedness made by the Parent with the proceeds of the issuance of Equity Interests by the Parent to the Ultimate Parent or capital contributions from the Ultimate Parent to the Parent.
(c) The Parent, Holdings and the Borrower will not, and will not permit any Subsidiary to, furnish any funds to, make any Investment in, or provide other consideration to any other Person (including an Unrestricted Subsidiary) for purposes of enabling such Person to, or otherwise permit any such Person to, make any Restricted Payment or other payment or distribution restricted by this Section that could not be made directly by Holdings or the Borrower in accordance with the provisions of this Section.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any Restricted Subsidiary to, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, except:
(i) to make dividends payable solely in the same class of Equity Interests of such Person;
(ii) to make dividends or other distributions payable to the Credit Parties (directly or indirectly through its Subsidiaries);
(iii) after an offering of Qualified Equity Interests completed after the Closing Date, an amount equal to 6% per annum of the Net Cash Proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from any such offering(s) completed after the Closing Date;
(iv) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Payment or would immediately result therefrom, the Borrower may make Restricted Payments in the form of cash dividends payable with respect to shares of the Borrower’s Series A Convertible Preferred Stock in an amount not to exceed $2,000,000 per annum provided that, on a Pro Forma Basis, immediately after giving effect to such Restricted Payment, the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) prior to such date and for the Test Period ending on such date, is less than or equal to 0.25:1.00 less than the Total Net Leverage Ratio required to then comply with each of the Financial Covenants then in effect;
(v) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Payment or would immediately result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount not to exceed the Available Amount as of such date; provided that, solely to the extent that such Restricted Payment is made with any portion of the Available Amount described in clause (a) of the definition thereof, on a Pro Forma Basis, immediately after giving effect to such Restricted Payment, the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) prior to such date and for the Test Period ending on such date, is less than or equal to 3.00:1.00;
(vi) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Payment or would immediately result therefrom, the Borrower may make additional unlimited Restricted Payments; provided that, on a Pro Forma Basis, immediately after giving effect to such Restricted Payment, the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) prior to such date and for the Test Period ending on such date, is less than or equal to 1.50:1.00; and
(vii) so long as no Event of Default shall have occurred or would result therefrom, to pay dividends and/or redeem shares of common stock in an aggregate amount not to exceed $35,000,000.
(b) The Borrower will not, and will not permit any Restricted Subsidiary to, declare or make, make or agree to pay or make, directly or indirectly, any prepayment (including voluntary and mandatory prepayments), repurchase or redemption (whether in cash, securities or other property) of or in respect of principal or any interest, fees or other amounts of any Junior Financing, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of the principal of any Junior Financing that has a substantially similar effect to any of the foregoing, in each case, prior to the scheduled maturity thereof (excluding any payments of regularly scheduled principal, interest, fees, expenses and indemnification obligations in compliance with the terms of this Agreement) (any of the foregoing, a “Restricted Debt Payment, or incur any obligation (contingent or otherwise) to do so”), except:
(i) Allied Waste may declare and pay dividends mandatory prepayments of any Junior Financing (other than Subordinated Indebtedness) not otherwise prohibited by the terms of this Agreement, including mandatory prepayments made with respect to its capital stock payable solely in additional shares of its capital stockDeclined Proceeds;
(ii) Restricted Subsidiaries Permitted Refinancings of the Borrower may declare and pay dividends ratably with respect to their capital stockIndebtedness permitted by Section 6.1;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount the conversion of $25,000,000 during any fiscal year, pursuant Junior Financing to 119 and in accordance with the stock option plans or Equity Interests (other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees than Disqualified Equity Interests) of the Borrower and its Restricted SubsidiariesBorrower;
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, so long as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingcontinuing at the time of making such Restricted Debt Payment or would immediately result therefrom, additional Restricted Debt Payments in respect of any Junior Financings in an aggregate amount not to exceed the Available Amount as of such date; provided that, solely to the extent that such Restricted Debt Payment is made with any portion of the Available Amount described in clause
(a) of the definition thereof, on a Pro Forma Basis, immediately after giving effect to such Restricted Debt Payment , the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) prior to such date and for the Test Period ending on such date, is less than or equal to 3.00:1.00;
(v) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Debt Payment or would immediately result therefrom, additional unlimited Restricted Debt Payments ; provided that, on a Pro Forma Basis, immediately after giving effect to such Restricted Debt Payment, the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) and for the Test Period ending on such date, is less than or equal to 1.50:1.00;
(vi) additional Restricted Debt Payments in an aggregate amount not to exceed $10 million; and
(A) Restricted Debt Payments with Eligible Equity Proceeds, to the Borrower extent such Eligible Equity Proceeds have not otherwise been applied to make any Investment, Restricted Payment or Restricted Debt Payment hereunder and do not increase the Available Amount, (B) the conversion of all or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on portion of any Junior Financing into Qualified Equity Interests of the Sponsor Preferred Stock Borrower, (including on shares theretofore paid as dividends thereon in accordance with clause (vC) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction extent constituting a Restricted Debt Payment , payment-in-kind of the following additional conditions on the date interest with respect to any Junior Financing that is permitted under Section 6.1, and (D) Restricted Debt Payments as part of such dividend an “applicable high yield discount obligation” catch up payment and after giving effect thereto:with respect to Indebtedness permitted by Section 6.1.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Parent Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Parent Borrower may declare and pay dividends with respect to its capital stock Equity Interests payable solely in additional shares Equity Interests of its capital stock;
the same class (or any other Equity Interests of the Parent Borrower otherwise permitted to be issued hereunder) or 116 options, warrants or other rights to purchase such Equity Interests; (ii) Restricted the Parent Borrower may declare and pay a dividend or make a distribution to the owners of its Equity Interests of all the Equity Interests in, or all or substantially all the assets of, any Subsidiary, provided that (A) immediately -------- prior to the payment of such dividend or distribution the Parent Borrower or its Subsidiaries are permitted to sell, transfer or otherwise dispose of such Equity Interests or assets pursuant to Section 6.05, (B) such Equity Interests or assets are sold by such Permitted Holders immediately after the payment of such dividend or the making of such distribution, (C) all Net Proceeds from such sale are contributed by such Permitted Holders to the Parent Borrower as common equity immediately after the receipt thereof and (D) to the extent the sale, transfer or other disposition of such Equity Interests or assets would have constituted a Prepayment Event if sold, transferred or otherwise disposed of by the Parent Borrower or a Subsidiary, such Net Proceeds shall be applied pursuant to Section 2.11(c); (iii) Subsidiaries may declare and pay dividends ratably with respect to their capital stockEquity Interests; (iv) the Parent Borrower may pay Tax Distributions so long as the Parent Borrower is treated as a pass-through entity for United States Federal income tax purposes; and (v) the Parent Borrower may make any payments then required to be paid pursuant to the CHD Agreements and the Xxxxx Agreements, unless otherwise prohibited by Section 6.15.
(b) The Parent Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(i) payment or prepayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Debt prohibited by the subordination provisions thereof; provided that any payment of principal in respect of the -------- Subordinated Debt shall not be permitted; 117
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount refinancings of $25,000,000 during any fiscal year, pursuant Indebtedness to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiariesextent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the Borrower voluntary sale or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to transfer of the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10property or assets securing such Indebtedness;
(v) Allied Waste Indebtedness of Foreign Subsidiaries resulting from the Acquisition may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends be repaid on the Sponsor Preferred Stock (including on shares theretofore paid Effective Date as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stockcontemplated by Section 5.11; provided in each case that no Default or Event of Default has occurred and is then continuing;and
(vi) the Borrower or any Restricted Subsidiary Indebtedness of Foreign Subsidiaries incurred for working capital purposes may pay cash dividends be prepaid from time to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:time.
Appears in 1 contract
Samples: Credit Agreement (Armkel LLC)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Holdings nor the Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary or any Intermediate Parent to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(i) Allied Waste each Restricted Subsidiary may declare make Restricted Payments to the Borrower or any other Restricted Subsidiary of the Borrower; provided that in the case of any such Restricted Payment by a Restricted Subsidiary that is not a Wholly Owned Subsidiary of the Borrower, such Restricted Payment is made to the Borrower, any Restricted Subsidiary and pay dividends with respect to its capital stock payable solely in additional shares each other owner of its capital stock;Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests; 104 Blue Bird Body Company Credit Agreement
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste may make Restricted PaymentsHoldings, not exceeding an aggregate amount of $25,000,000 during any fiscal yearIntermediate Parent, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Qualified Equity Interests of such Person;
(iii) payment of (A) up to Allied Waste solely an aggregate amount of $250,000,000 for the Special Dividend, portions of which, up to an aggregate amount not to exceed $30,000,000 (a “Partial Dividend Payment”), may be paid within 60 days after the Effective Date and (B) and payments not to exceed $2,000,000 in the aggregate in respect of withholding tax obligations made thereon (such payments being referred to in the foregoing clauses (A) and (B) being collectively as the “Special Dividend Payments”); provided, that after giving Pro Forma Effect to each such Special Dividend Payment, whether made in whole on the Effective Date or as one or more Partial Dividend Payments following the Closing Date, (1) the Borrower shall have available unrestricted cash and Cash Equivalents reflected on its balance sheet in an amount not less than $15,000,000; (2) no Default or Event of Default shall exist or result therefrom, (3) the Administrative Agent shall have received (x) a Solvency Certificate from a Responsible Financial Officer certifying as to the solvency of the Borrower and its Restricted Subsidiaries on a consolidated basis after giving effect to such Special Dividend Payment or Partial Dividend Payment, as the case may be, (y) a certificate from a Responsible Officer certifying that all the representations and warranties set forth in this Agreement and the other Loan Documents are true and correct as of such date and certifying as to the matters set forth in clauses (1) and (2) of this proviso and (z) certified copies of board resolutions (to the extent necessary for Allied Waste not already covered in such resolutions provided pursuant to pay for taxes Section 4.01(d) as determined in the Administrative Agent’s reasonable discretion) approving the payment of such Special Dividend Payment or Partial Dividend Payment, as applicable;
(iv) so long as no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing or would result therefrom, Holdings may redeem, acquire, retire, repurchase or settle its Equity Interests (or any options or warrants or stock appreciation rights issued with respect to pay administrative expenses any of such Equity Interests or any phantom equity or similar plan relating to conduct its business Equity Interests) (or make Restricted Payments to allow any of Holdings’ direct or indirect parent companies to so redeem, retire, acquire or repurchase their Equity Interests) held by current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of Holdings (or any direct or indirect parent thereof), the Borrower and the Restricted Subsidiaries, (x) upon the death, disability, retirement or termination of employment of any such Person or (y) otherwise in accordance with Sections 5.01(b) and 6.10any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements, equity holders’ agreement, or phantom equity plan or similar plan relating to its Equity Interests;
(v) Allied Waste any Intermediate Parent, the Borrower and the Restricted Subsidiaries may declare and pay dividends make Restricted Payments in respect cash or Cash Equivalents to Holdings, any Intermediate Parent, the Borrower or any Restricted Subsidiary:
(A) the proceeds of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stockwhich shall be used by Holdings, as provided therein) and at any time after June 30, 2004Intermediate Parent, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on its Tax liability to the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon relevant jurisdiction in accordance with respect of consolidated, combined, unitary or affiliated returns attributable to the income of the Borrower and any of its Restricted Subsidiaries; provided that Restricted Payments made pursuant to this clause (v)a)(v)(A) and Allied Waste may use shall not exceed the Tax liability that the Borrower and/or the relevant Restricted Subsidiaries (as applicable) would have incurred were such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on Taxes determined as if such Sponsor Preferred Stockentity(ies) were a stand-alone taxpayer or a stand-alone group; provided in each case that no Default or Event of Default has occurred and is then continuing;105 Blue Bird Body Company Credit Agreement
(viB) the proceeds of which shall be used by Holdings, any Intermediate Parent, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on (1) its operating expenses incurred in the Sponsor Preferred Stock ordinary course of business and other corporate overhead costs and expenses (including on shares theretofore administrative, legal, accounting and similar expenses payable to third parties) that are reasonable and customary and incurred in the ordinary course of business, and customary indemnification claims made by directors or officers of Holdings (or any parent thereof), in each case to the extent attributable to the ownership or operations of the Borrower and the Restricted Subsidiaries and (2) fees and expenses (x) due and payable by any of the Restricted Subsidiaries and (y) otherwise permitted to be paid as dividends thereon in accordance with by such Restricted Subsidiary under this Agreement;
(C) the proceeds of which shall be used by Holdings or any Intermediate Parent to pay franchise Taxes and other fees, Taxes and expenses required to maintain its corporate existence;
(D) the proceeds of which shall be used by Holdings to make Restricted Payments permitted by Section 6.06(a)(iv);
(E) the proceeds of which shall be used to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses related to any unsuccessful equity or debt offering permitted by this Agreement; and
(F) the proceeds of which shall be used to make payments permitted by clause (vb)(iv) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with of this clause Section 6.06;
(vi) are subject in addition to the satisfaction foregoing Restricted Payments and so long as no Event of Default shall have occurred and be continuing or would result therefrom and Holdings would be in compliance with a Total Net Leverage Ratio not to exceed 1.75 to 1.00, on a Pro Forma Basis as of the following additional conditions end of the most recently ended Test Period, Restricted Payments in an aggregate amount not to exceed the Available Amount at such time;
(vii) payments permitted under Section 6.07; and
(viii) 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 interests as those contained in the Equity Interests redeemed thereby.
(b) Neither Holdings nor the Borrower will, nor will they permit any other Restricted Subsidiary or any Intermediate Parent to, make or pay, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Junior 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 date purchase, redemption, retirement, acquisition, cancellation or termination of such dividend any Junior Financing, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except: 106 Blue Bird Body Company Credit Agreement
(i) payment of regularly scheduled or required interest payments as, in the form of payment and after giving effect thereto:when due in respect of any Indebtedness to the extent such payments in respect of any Junior Financing are permitted by the subordination provisions thereof;
(ii) refinancings, refundings, renewals, modifications or exchanges of Indebtedness to the extent permitted by Section 6.01;
(iii) the conversion of any Junior Financing to Equity Interests (other than Disqualified Equity Interests) of Holdings or any of its direct or indirect parent companies or any Intermediate Parent; and
(iv) so long as no Event of Default shall have occurred and be continuing or would result therefrom and Holdings would be in compliance with a Total Net Leverage Ratio not to exceed 2.25 to 1.00, on a Pro Forma Basis as of the end of the most recently ended Test Period, prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings prior to their scheduled maturity in an aggregate amount not to exceed the Available Amount at such time.
Appears in 1 contract
Samples: Credit Agreement (Blue Bird Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Holdings may declare and pay dividends with respect to its capital common or preferred stock payable solely in additional shares of its capital common or preferred stock;
, (ii) any Subsidiary may make Restricted Subsidiaries of Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may declare make distributions to Holdings for payment of reasonable out-of-pocket operating and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may make Restricted Paymentsbe, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or incurred primarily in connection with incentive or compensation arrangements for current or former management or employees the business of the Borrower Borrower, so long as no Default shall have occurred and its Restricted Subsidiaries;
is continuing or would occur as a result thereof, (iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments distributions to Allied Waste solely Holdings in an amount necessary to the extent necessary for Allied Waste enable Holdings to pay for taxes when due, its actual federal, state and local income Taxes directly attributable to pay administrative expenses to conduct its business in accordance with Sections 5.01(b(or arising as a result of) the operations of the Borrower, the Manager and 6.10;
their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) Allied Waste so long as the Distribution Conditions have been satisfied (as determined by the Administrative Agent in its reasonable discretion) at the time of, and with respect to, any Restricted Payment not otherwise permitted by the foregoing clauses (i) through (iv), the Borrower may make such Restricted Payment to Holdings and Holdings may make such Restricted Payment to holders of Equity Interests in Holdings so long as (1) the aggregate amount of Restricted Payments made pursuant to this clause (v) after the Effective Date does not exceed the sum of (x) $20,000,000 plus (y) the amount of any such Restricted Payments made at such time as the Additional Distribution Conditions have been satisfied, and (2) such Restricted Payment is made only with the proceeds of cash on hand of the Loan Parties and not with the proceeds of Loans[intentionally omitted], (vi) Potbelly Franchising may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order Holdings to permit Allied Waste Holdings to pay invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party; , and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon a pro rata basis to all such holders in accordance with this clause (v)) and Allied Waste may use their respective Equity Interests in such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Permitted J/V.
Appears in 1 contract
Samples: Credit Agreement (Potbelly Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Borrower may declare and pay dividends with respect to its capital common stock or Qualified Preferred Stock payable solely in additional shares of its capital stock;
common stock or Qualified Preferred Stock, or make cash payments in lieu of fractional shares, (ii) Restricted Subsidiaries of (other than those directly owned, in whole or part, by the Borrower Borrower) may declare and pay dividends ratably with respect to their capital common stock;
, (iii) Allied Waste the Borrower may make declare and pay cash dividends with respect to its common stock and effect repurchases, redemptions or other Restricted PaymentsPayments with respect to its common stock, not exceeding together in an aggregate amount of $25,000,000 during in any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees year of the Borrower not to exceed 50% of Consolidated Net Income (if positive) for the immediately preceding fiscal year of the Borrower; provided that immediately prior and its Restricted Subsidiaries;
after giving effect to any such payment no Default or Event of Default shall have occurred and be continuing and, immediately after giving effect to any such payment, the Borrower shall have Revolver Availability of more than $100,000,000, (iv) the Borrower may pay cash dividends in an amount not to exceed $60,000,000 in any fiscal year of the Borrower with respect to any Qualified Preferred Stock; provided that (x) immediately prior and after giving effect to any such payment, no Default or any Restricted Subsidiary may declare Event of Default shall have occurred and make dividend payments to Allied Waste solely be continuing and (y) only so long as a Financial Covenant Effectiveness Period is then occurring, the Consolidated Fixed Charge Coverage Ratio for the period of four consecutive fiscal quarters most recently ended on or prior to the extent necessary date of such payment, calculated on a pro forma basis as if such payment were made on the last day of such period (and excluding any such payments previously made pursuant to this clause during such four quarter period but attributed for Allied Waste purposes of this calculation to pay for taxes and the last day of a prior period which day does not occur in such four quarter period) is not less than the ratio applicable to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
such period of four fiscal quarters under Section 6.12, (v) Allied Waste the Borrower and the Subsidiaries may make Restricted Payments consisting of the repurchase or other acquisition of shares of, or options to purchase shares of, capital stock of the Borrower or any of its Subsidiaries from employees, former employees, directors or former directors of the Borrower or any Subsidiary (or their permitted transferees), in each case pursuant to stock option plans, stock plans, employment agreements or other employee benefit plans approved by the board of directors of the Borrower; provided that no Default has occurred and is continuing; and provided further that the aggregate amount of such Restricted Payments made after the Original Restatement Effective Date shall not exceed $10,000,000, (vi) the Subsidiaries may declare and pay cash dividends in respect to the Borrower; provided that the Borrower shall, within a reasonable time following receipt of any such payment, use all of the Sponsor Preferred Stock payable solely proceeds thereof for a purpose set forth in additional shares Section 5.10(b) or a Refinancing Amendment (including the payment of Sponsor Preferred Stock dividends required or permitted pursuant to this Section 6.08(a)), (or other capital stock, as provided thereinvii) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary and the Subsidiaries may declare and pay cash dividends with respect to Allied Waste the Equity Interests set forth on Schedule 6.08(a) to the extent, and only to the extent, required pursuant to the terms of such Equity Interests or any other agreement in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends effect on the Sponsor Preferred Stock Effective Date and (including on shares theretofore paid viii) so long as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingcontinuing or would result therefrom, the Borrower may redeem or repurchase shares of the Borrower’s and/or its Subsidiaries’ (including Rite Aid Lease Management Company’s) Preferred Stock (A) solely with Net Cash Proceeds received by the Borrower from issuances of its common stock after the Original Restatement Effective Date, provided that any such repurchase or redemption is effected within 150 days after the receipt of such proceeds or (B) with other funds available to the Borrower if, immediately after giving effect to any such redemption or repurchase, the Borrower shall have Revolver Availability of more than $100,000,000.
(b) The Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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 Indebtedness (which, for purposes of this Section 6.08(b), shall include any Indebtedness, including the 2015 8.5% Convertible Notes, incurred pursuant to any of clauses (i) through (xx) of Section 6.01(a)), except:
(i) payments or prepayments or exchanges of Indebtedness (including Refinancing Indebtedness) created under the Senior Loan Documents (including any Refinancing Amendment executed in accordance with Section 6.01(c)) and prepayments, repurchases or redemptions of Additional Senior Debt made in accordance with Section 2.11(c);
(viii) the Borrower or payments of regularly scheduled interest and principal payments as and when due in respect of any Restricted Subsidiary may pay cash dividends Indebtedness permitted pursuant to Allied Waste in order Section 6.01(a);
(iii) prepayments of Indebtedness permitted pursuant to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (vvii), (viii) hereofor (ix) and Allied Waste may use such dividends of Section 6.01(a) with the proceeds of, or in exchange for, Indebtedness permitted pursuant to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vivii), (viii) are subject to the satisfaction or (ix) of Section 6.01(a), respectively;
(iv) payments of secured Indebtedness that becomes due as a result of the following additional conditions on voluntary sale or transfer of the date of property or assets securing such dividend payment and after giving effect thereto:Indebtedness;
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste No Loan Party will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:except that
(i) Allied Waste Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends with or make other distributions of property to a Loan Party; provided that any such Restricted Payments made to Holdings or the Parent under this clause (i) shall be used (w) to pay general corporate and overhead expenses incurred by Holdings or the Parent in the ordinary course of business, or the amount of any indemnification claims made by any director or officer of Holdings or the Parent, (x) to pay franchise taxes and other fees, taxes and expenses required to maintain the corporate existence of Holdings or the Parent, (y) to pay taxes that are due and payable by the Parent as the parent of a consolidated group that includes Parent and its Subsidiaries, and (z) so long as no Event of Default shall have occurred and be continuing under SECTIONS 6.10, 7.01(a), 7.01(b), 7.01(h), or 7.01(i) or would result therefrom, to pay interest as and when due in respect of the Holdco Notes to its capital stock payable solely in additional shares of its capital stockthe extent required under the Holdco Note Documents;
(ii) The Loan Parties may make Restricted Subsidiaries Payments for the purpose of paying amounts owing under the Borrower may declare and pay dividends ratably with respect Advisory Agreement, to their capital stockthe extent permitted under SECTION 6.07;
(iii) Allied Waste The Loan Parties may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant Payments on the Closing Date to 119 and in accordance with consummate the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted SubsidiariesBCFWC Acquisition;
(iv) The Loan Parties may make Restricted Payments consisting of Permitted Dispositions of the Borrower type described, and subject to the limitations contained, in the definition thereof; and
(v) The Loan Parties may make Restricted Payments constituting repurchases of equity interests in the Parent or any Subsidiary 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 Subsidiary may declare Payments made pursuant to this clause (v) shall not exceed $2,000,000 in any Fiscal Year of the Parent.
(b) No Loan Party will 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 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 Indebtedness, except
(i) payments in Capital Stock (as long as no Change in Control would result therefrom) and make dividend payments of interest in-kind of the Loan Parties;
(ii) payments of principal and interest in respect of any Subordinated Indebtedness (subject to Allied Waste solely applicable subordination provisions relating thereto);
(iii) (A) payments of principal (including mandatory prepayments) and interest as and when due in respect of any Permitted Indebtedness (other than Subordinated Indebtedness) and (B) as long as the Payment Conditions are satisfied, prepayments of Permitted Indebtedness (other than the Senior Notes, the Holdco Notes, the Term Loan Financing Facility, Indebtedness due to the extent necessary Sponsor or any of its Affiliates (other than Indebtedness due to any of the Loan Parties or their Subsidiaries) or Subordinated Indebtedness);
(iv) prepayment in whole or in part of the Senior Notes, the Holdco Notes, 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 Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10the purpose of making such payment or prepayment;
(v) Allied Waste may declare and pay dividends prepayment in respect whole or in part of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004Senior Notes, the Borrower Holdco Notes, or the Term Loan Financing Facility from any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount refinancing of the Senior Notes, the Holdco Notes, or the Term Loan Financing Facility not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingprohibited hereunder;
(vi) if the Borrower Payment Conditions are satisfied, prepayment in whole or any Restricted Subsidiary may pay cash dividends in part of the Senior Notes or the Holdco Notes;
(vii) if the Term Payment Availability Conditions are satisfied, prepayment in whole or in part of the Term Loan Financing Facility;
(viii) as long as no Specified Default then exists or would arise therefrom, payments of interest only on account of Permitted Indebtedness due to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsors or Sponsor Preferred Stock Related Parties, stockholders and/or Affiliates (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to applicable subordination provisions relating thereto);
(ix) payments of principal and interest in respect of notes issued to stockholders in connection with the satisfaction repurchase of shares of Capital Stock of the following additional conditions on Parent, provided that such payments shall not exceed $3,000,000 in any Fiscal Year, provided that, in the date event the entire $3,000,000 is not utilized in any Fiscal Year, one hundred percent (100%) of such dividend payment and after giving effect thereto:unutilized portion may be carried forward to succeeding Fiscal Years of the Parent; and
(x) refinancings of Indebtedness to the extent permitted under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (COHOES FASHIONS of CRANSTON, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted the Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stockEquity Interests, (ii) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in shares of Qualified Equity Interests, (iii) scheduled dividends payable with respect to the outstanding shares of Series C Preferred Stock pursuant to the terms thereof in existence on the Effective Date, (iv) the Borrower may make Restricted Payments not exceeding $10,000,000 during any fiscal year pursuant to and in accordance with stock option plans, employment agreements or other benefit plans approved by the Borrower’s board of directors for management, directors, former directors, employees and former employees of the Borrower and the Subsidiaries, (v) if the Borrower or any Subsidiary subsequently becomes an operational national securities exchange under the Exchange Act, the Borrower may redeem the outstanding share of Series D Preferred Stock, (vi) at any time at which the Total Leverage Ratio at such time does not exceed the Covenant Leverage Ratio applicable to that period (each calculated on a Pro Forma Basis) on or after the delivery of the financial statements and the certificate of a Financial Officer pursuant to Section 5.01(a) and Section 5.01(c), respectively, for the Borrower’s fiscal year ended December 31, 2006, the Borrower may repurchase, redeem or retire its Equity Interests in an aggregate amount in any fiscal year not to exceed 50% of Excess Cash Flow for the immediately preceding fiscal year, provided that (x) at the time of any such payment, no Default shall have occurred and be continuing or would result therefrom, (y) any amounts required to be applied to prepay Term Loans pursuant to Section 2.11(d) shall have been so applied and (z) the Borrower has delivered to the Administrative Agent a certificate of a Financial Officer, together with all relevant financial information reasonably requested by the Administrative Agent, demonstrating the calculation of such Excess Cash Flow and (vii) the Borrower may make additional repurchases, redemptions and retirements of its Equity Interests in an aggregate amount not to exceed $25,000,000 during the term of this Agreement.
(b) The Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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 Indebtedness, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) payment or prepayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as, in the form of payment and when due in respect of any Indebtedness, other than payments in respect of the Convertible Notes and Additional Subordinated Debt prohibited by the subordination provisions thereof;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount refinancings of $25,000,000 during any fiscal year, pursuant Indebtedness to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiariesextent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the Borrower voluntary sale or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to transfer of the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;property or assets securing such Indebtedness; and
(v) Allied Waste may declare and pay dividends in respect of payments under the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Additional Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Intercompany Loan.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Nasdaq Stock Market Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any Restricted Subsidiary to, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, except:
(i) to make dividends payable solely in the same class of Equity Interests of such Person;
(ii) to make dividends or other distributions payable to the Credit Parties (directly or indirectly through its Subsidiaries);
(iii) after an offering of Qualified Equity Interests completed after the Closing Date, an amount equal to 6% per annum of the Net Cash Proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from any such offering(s) completed after the Closing Date;
(iv) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Payment or would immediately result therefrom, the Borrower may make Restricted Payments in the form of cash dividends payable with respect to shares of the Borrower’s Series A Convertible Preferred Stock in an amount not to exceed $2,000,000 per annum provided that, on a Pro Forma Basis, immediately after giving effect to such Restricted Payment, the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) prior to such date and for the Test Period ending on such date, is less than or equal to 0.25:1.00 less than the Total Net Leverage Ratio required to then comply with each of the Financial Covenants then in effect;
(v) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Payment or would immediately result therefrom, the Borrower may make additional Restricted Payments in an aggregate amount not to exceed the Available Amount as of such date; provided that, solely to the extent that such Restricted Payment is made with any portion of the Available Amount described in clause (a) of the definition thereof, on a Pro Forma Basis, immediately after giving effect to such Restricted Payment, the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) prior to such date and for the Test Period ending on such date, is less than or equal to 3.00:1.00;
(vi) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Payment or would immediately result therefrom, the Borrower may make additional unlimited Restricted Payments; provided that, on a Pro Forma Basis, immediately after giving effect to such Restricted Payment, the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) prior to such date and for the Test Period ending on such date, is less than or equal to 1.50:1.00; and
(vii) so long as no Event of Default shall have occurred or would result therefrom, to pay dividends and/or redeem shares of common stock in an aggregate amount not to exceed $35,000,000.
(b) The Borrower will not, and will not permit any Restricted Subsidiary to, declare or make, make or agree to pay or make, directly or indirectly, any prepayment (including voluntary and mandatory prepayments), repurchase or redemption (whether in cash, securities or other property) of or in respect of principal or any interest, fees or other amounts of any Junior Financing, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of the principal of any Junior Financing that has a substantially similar effect to any of the foregoing, in each case, prior to the scheduled maturity thereof (excluding any payments of regularly scheduled principal, interest, fees, expenses and indemnification obligations in compliance with the terms of this Agreement) (any of the foregoing, a “Restricted Debt Payment, or incur any obligation (contingent or otherwise) to do so”), except:
(i) Allied Waste may declare and pay dividends mandatory prepayments of any Junior Financing (other than Subordinated Indebtedness) not otherwise prohibited by the terms of this Agreement, including mandatory prepayments made with respect to its capital stock payable solely in additional shares of its capital stockDeclined Proceeds;
(ii) Restricted Subsidiaries Permitted Refinancings of the Borrower may declare and pay dividends ratably with respect to their capital stockIndebtedness permitted by Section 6.1;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount the conversion of $25,000,000 during any fiscal year, pursuant Junior Financing to 119 and in accordance with the stock option plans or Equity Interests (other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees than Disqualified Equity Interests) of the Borrower and its Restricted SubsidiariesBorrower;
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, so long as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingcontinuing at the time of making such Restricted Debt Payment or would immediately result therefrom, additional Restricted Debt Payments in respect of any Junior Financings in an aggregate amount not to exceed the Available Amount as of such date; provided that, solely to the extent that such Restricted Debt Payment is made with any portion of the Available Amount described in clause (a) of the definition thereof, on a Pro Forma Basis, immediately after giving effect to such Restricted Debt Payment , the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) prior to such date and for the Test Period ending on such date, is less than or equal to 3.00:1.00;
(v) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Debt Payment or would immediately result therefrom, additional unlimited Restricted Debt Payments ; provided that, on a Pro Forma Basis, immediately after giving effect to such Restricted Debt Payment, the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) and for the Test Period ending on such date, is less than or equal to 1.50:1.00;
(vi) additional Restricted Debt Payments in an aggregate amount not to exceed $10 million; and
(A) Restricted Debt Payments with Eligible Equity Proceeds, to the Borrower extent such Eligible Equity Proceeds have not otherwise been applied to make any Investment, Restricted Payment or Restricted Debt Payment hereunder and do not increase the Available Amount, (B) the conversion of all or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on portion of any Junior Financing into Qualified Equity Interests of the Sponsor Preferred Stock Borrower, (including on shares theretofore paid as dividends thereon in accordance with clause (vC) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction extent constituting a Restricted Debt Payment , payment-in-kind of the following additional conditions on the date interest with respect to any Junior Financing that is permitted under Section 6.1, and (D) Restricted Debt Payments as part of such dividend an “applicable high yield discount obligation” catch up payment and after giving effect thereto:with respect to Indebtedness permitted by Section 6.1.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNone of the Holding Companies or the Borrowers will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Subsidiaries may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends or make distributions ratably with respect to their capital stock;
stock or membership interests, (iiiii) Allied Waste the BC Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 5,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the BC Borrower and the BC Subsidiaries, (iii) the BC Borrower and the Timber Borrower may make distributions to BC Holdings and Timber Holdings, respectively, at such times and in such amounts, not exceeding $5,000,000 during any fiscal year, as shall be necessary to permit each of BC Holdings and Timber Holdings to discharge its Restricted Subsidiaries;
permitted liabilities, (iv) if at the time thereof and after giving effect thereto no Default has occurred and is continuing, the Timber Borrower may distribute to Timber Holdings, and Timber Holdings may distribute, any Excess Timber Consideration (excluding any Excess Timber Consideration consisting of cash that is transferred to or invested in BC Holdings, the BC Borrower or any Restricted BC Subsidiary for the purpose of funding any redemption or repurchase of Senior Unsecured Debt or Subordinated Debt pursuant to clause (v) of paragraph (b) of this Section), (v) each Holding Company may declare redeem the Equity Interests of such Holding Company, and may make dividend payments distributions to Allied Waste solely FPH so that FPH may make such redemptions of Equity Interests of FPH, in each case from former members of management, former employees, or former directors of Loan Parties, and each Borrower may make distributions to its Holding Company as necessary to fund such redemptions, PROVIDED that the aggregate amount applied for all such purposes shall not exceed $3,000,000 during any fiscal year, (vi) the Holding Companies and the Borrowers may pay (by distribution or otherwise) management fees to Madison Dearborn of up to $1,000,000 in the aggregate in any fiscal year, (vii) distributions by the Borrowers to the Holding Companies to pay directors' out-of-pocket expenses and indemnification obligations owing to directors, (viii) the Timber Borrower may distribute to Timber Holdings, and Timber Holdings may distribute, any amount of the Net Proceeds received in respect of a Timberland Prepayment Event that is required to be used to prepay Tranche D Term Borrowings pursuant to Section 2.11, PROVIDED that (A) the amount so distributed is immediately reinvested in BC Holdings, and invested by BC Holdings in the BC Borrower and thereupon promptly used for such purpose and (B) such distribution and reinvestment is made pursuant to procedures satisfactory to the Administrative Agent, (ix) the Timber Borrower may distribute to Timber Holdings, and Timber Holdings may distribute, any Equity Interests of BC Holdings acquired by the Timber Borrower or any Timber Subsidiary pursuant to clause (xiv) of Section 6.04(b), (x) each Borrower may make distributions to the Holding Companies, and each Holding Company may in turn make distributions to FPH, (A) not exceeding $500,000 in the aggregate during any fiscal year, at such times as shall be necessary to permit FPH to discharge its corporate maintenance obligations and (B) not exceeding $500,000 in the aggregate during any fiscal year, at such times as shall be necessary to permit FPH to discharge its obligations related to its portion of common expenses shared with any of the Holding Companies or the Borrowers, (xi) [Intentionally Omitted], (xii) for so long as BC Holdings is a pass-through or disregarded entity for United States Federal income tax purposes, the BC Borrower may make distributions to BC Holdings, and BC Holdings shall in turn be permitted, to make Tax Distributions in respect of any taxable year of BC Holdings equal to the product of (A) the amount of taxable income allocated to the Members for such taxable year, less the amount of taxable loss allocated to the Members for all prior taxable years (except to the extent necessary such taxable losses have previously been taken into account under this provision), times (B) the highest aggregate marginal statutory Federal, state and local income tax rate (determined taking into account the deductibility of state and local income taxes for Allied Waste Federal income tax purposes) to which any of the direct or indirect Members of BC Holdings who is an individual is subject for such year; and BC Holdings shall be permitted to make such Tax Distributions pursuant to this clause (xii) on a quarterly basis during such taxable year based on the best estimate of the chief financial officer of BC Holdings of the amounts specified in clauses (A) and (B) above; PROVIDED that if the aggregate amount of the estimated Tax Distributions made in any taxable year of BC Holdings exceeds the actual maximum amount of Tax Distributions for that year as finally determined, the amount of any Tax Distributions in the succeeding taxable year (or, if necessary, any subsequent taxable years) shall be reduced by the amount of such excess, (xiii) after consummation of the Contemplated IPO, the Borrowers and the Holding Companies may declare or make, or agree to pay for taxes or make, or incur obligations to make, Restricted Payments in cash; PROVIDED that (A) the aggregate amount of such Restricted Payments under this clause (xiii) plus the aggregate amount of cash consideration applied pursuant to clause (vii) of Section 6.08(b) shall not exceed the aggregate Net Proceeds received from the Contemplated IPO and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b(B) and 6.10;
all such Restricted Payments under this clause (vxiii) Allied Waste must be made within 180 days after the date of consummation of the Contemplated IPO, (xiv) after consummation of the Contemplated IPO, BC Holdings may declare and pay dividends in respect cash, and the BC Borrower may make distributions to BC Holdings to fund such dividends; PROVIDED that (A) at the time of and after giving effect to any such dividend, no Default shall have occurred and be continuing, (B) subject to clause (C) below, at the Sponsor Preferred Stock payable solely in additional shares time of Sponsor Preferred Stock (or other capital stock, as provided therein) and at after giving effect to any time after June 30, 2004such dividend, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 dividends paid in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with reliance upon this clause (v)xiv) and Allied Waste may use such dividends to pay cash dividends since the Restatement Effective Date shall not exceeding exceed an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject equal to the satisfaction sum of (1) 50% of the following additional conditions on Consolidated Net Income accrued during the period (treated as one accounting period) from the Original Effective Date to the end of the most recent fiscal quarter ending prior to the date of such dividend payment for which internal financial statements are available (or, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus (2) in the event of the occurrence of a Prepayment Event described in clause (c) of the definition of the term Prepayment Event, an amount equal to 50% of the Net Proceeds from such Prepayment Event and (C) dividends may be paid in reliance upon this clause (xiv) in an aggregate amount of up to $35,000,000 notwithstanding whether such dividends would be permitted by clause (B) above, but any such dividends paid in reliance upon this clause (C) shall be included in determining whether any dividends may be paid in reliance upon clause (B) above and (xv) after giving effect thereto:consummation of the Contemplated IPO, the BC Borrower may make distributions to BC Holdings, and BC Holdings may in turn make distributions to FPH at such times as shall be necessary to permit FPH to reimburse the expenses of Madison Dearborn incurred in connection with the consummation of the Contemplated IPO, but any such distributions shall be deducted in calculating Net Proceeds from the Contemplated IPO.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Boise Cascade Holdings, L.L.C.)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Holdings may declare and pay dividends with respect to its capital common or preferred stock payable solely in additional shares of its capital common or preferred stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) so long as the Distribution Conditions have been satisfied (as determined by the Administrative Agent in its reasonable discretion) at the time of, and with respect to, any Restricted Payment not otherwise permitted by the foregoing clauses (i) through (iv), the Borrower may make such Restricted Payment to Holdings and Holdings may make such Restricted Payment to holders of Equity Interests in Holdings so long as the aggregate amount of Restricted Payments made pursuant to this clause (v) after the Effective Date does not exceed the sum of (x) $40,000,000 plus (y) the amount of any such Restricted Payments made at such time as the Additional Distribution Conditions have been satisfied, (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party; and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) Restricted Subsidiaries payment of the Borrower may declare regularly scheduled interest and pay dividends ratably with principal payments as and when due in respect to their capital stockof any Indebtedness;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount refinancings of $25,000,000 during any fiscal year, pursuant Indebtedness to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiariesextent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Potbelly Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste each of Holdings and the Borrower may declare and pay dividends with respect to its capital stock common stock, payable solely in additional shares of its capital 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) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
, (iii) Allied Waste the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments to Holdings to permit Holdings to make payments pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of Holdings, the Borrower and the Subsidiaries in an aggregate amount not to exceed $7,500,000 during any fiscal year, (iv) Holdings may (A) redeem the Qualified Preferred Stock pursuant to a conversion into common stock of Holdings and (B) make any Restricted Payments in connection with such conversion, in each case, in accordance with the terms of the Qualified Preferred Stock (v) 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 part of a consolidated group that includes the Borrower, to the extent that such taxes relate to the operations of the Borrower and the Subsidiaries, (vi) so long as no Default shall have occurred and be continuing or would result therefrom, Holdings may repurchase, redeem or retire its outstanding Equity Interests or make other Restricted SubsidiariesPayments (and the Borrower may make Restricted Payments the proceeds of which are to be used by Holdings to effect such repurchases, redemptions or retirements or to redeem or repurchase Existing Senior Subordinated Notes or Senior Subordinated Notes) in an aggregate amount not to exceed (A) in the event the Net Leverage Ratio on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available is greater than or equal to 2.00 to 1.00, (x) $10,000,000 minus (y) the aggregate amount of Restricted Payments and payments relating to the Subordinated Debt previously made pursuant to this clause (vi), (B) 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 2.00 to 1.00 and greater than or equal to 1.50 to 1.00, (x) $25,000,000 minus (y) the aggregate amount of Restricted Payments and payments relating to the Subordinated Debt previously made pursuant to this clause (vi) and (C) in the event the Net Leverage Ratio on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available is less than 1.50 to 1.00, (x) $40,000,000 minus (y) the aggregate amount of Restricted Payments and payments relating to the Subordinated Debt previously made pursuant to this clause (vi) and (vii) so long as no Default shall have occurred and be continuing or would result therefrom, Holdings may make Restricted Payments (and the Borrower may make Restricted Payments the proceeds of which are used by Holdings to make such payments) in an aggregate amount not to exceed $2,000,000 during any fiscal year.
(b) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Debt or the Subordinated Promissory Note prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the Borrower voluntary sale or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to transfer of the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10property or assets securing such Indebtedness;
(v) Allied Waste may declare [intentionally omitted]
(vi) redemption, repurchase and pay dividends in respect retirement of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock Xxxxxxxxxxxx Xxxx (or other capital stock, as provided thereinxxxxxxxxx xxx xxxxxxx (if any) and accrued and unpaid interest thereon to the date of such redemption, repurchase or retirement) with the Net Proceeds of any issuance of Equity Interests of Holdings during the period of four consecutive fiscal quarters ended immediately prior to the date of such redemption, repurchase or retirement (to the extent not previously applied to repurchase Subordinated Debt, to make Permitted Acquisitions, to make Capital Expenditures or to make investments under Section 6.04 (m)); and
(vii) redemption, repurchase and retirement of Subordinated Debt (including any premium (if any) and accrued and unpaid interest thereon to the date of such redemption or repurchase), at any time after June 30during any fiscal year in an aggregate amount equal to (A) $25,000,000, 2004plus (B) Retained Excess Cash Flow for the previous fiscal year (to the extent such Retained Excess Cash Flow has not been applied previously to make Permitted Acquisitions, to repurchase Subordinated Debt or to make Capital Expenditures) plus (C) the amount of payments permitted to be made under Section 6.08(a)(vi).
(c) If, as a result of the receipt of any Net Proceeds by the Borrower or any Restricted Subsidiary may pay cash dividends in connection with any sale, transfer or other disposition pursuant to Allied Waste in Section 6.05(c) or (g), the Borrower would be required by the terms of the Senior Subordinated Debt Documents or the terms of any Additional Senior Subordinated Notes to redeem or repurchase (or to make an aggregate cumulative amount offer to redeem or repurchase) any Existing Senior Subordinated Notes, Senior Subordinated Notes or Additional Senior Subordinated Notes, then the Borrower shall, or shall cause one or more of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock its Subsidiaries to, (including on shares theretofore paid as dividends thereon i) prepay Term Loans in accordance with Section 2.11 as if such sale, transfer or disposition constituted a "Prepayment Event" or (ii) acquire real property, 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 Existing Senior Subordinated Notes, Senior Subordinated Notes and Additional Senior Subordinated Notes. Any such prepayment or acquisition pursuant to this clause (v)c) and Allied Waste may use such dividends shall be made prior to pay cash dividends not exceeding an aggregate amount of $75,000,000 the first day on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) which the Borrower would be required to redeem or repurchase (or commence an offer to redeem or repurchase) Existing Senior Subordinated Notes, Senior Subordinated Notes or Additional Senior Subordinated Notes under the Senior Subordinated Debt Documents or the terms of any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid such Additional Senior Subordinated Notes, as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend payment and after giving effect thereto:applicable.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Borrower may declare and pay dividends with respect to its capital common stock or Qualified Preferred Stock payable solely in additional shares of its capital stock;
common stock or Qualified Preferred Stock, (ii) Restricted Subsidiaries of (other than those directly owned, in whole or part, by the Borrower Borrower) may declare and pay dividends ratably with respect to their capital common stock;
, (iii) Allied Waste the Borrower may make declare and pay cash dividends with respect to its common stock and effect repurchases, redemptions or other Restricted PaymentsPayments with respect to its common stock, not exceeding together in an aggregate amount of $25,000,000 during in any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees year of the Borrower not to exceed 50% of Consolidated Net Income (if positive) for the immediately preceding fiscal year of the Borrower; provided that immediately prior and its Restricted Subsidiaries;
after giving effect to any such payment no Default or Event of Default shall have occurred and be continuing and, immediately after giving effect to any such payment, the Borrower shall have Revolver Availability of more than $100,000,000, (iv) the Borrower may pay cash dividends in an amount not to exceed $60,000,000 in any fiscal year of the Borrower with respect to the Series E Preferred Stock, Series I Preferred Stock or any Restricted Subsidiary may declare other Qualified Preferred Stock; provided that (x) immediately prior and make dividend payments after giving effect to Allied Waste solely any such payment, no Default or Event of Default shall have occurred and be continuing and (y) only so long as a Financial Covenant Effectiveness Period is then occurring, the Consolidated Fixed Charge Coverage Ratio for the period of four consecutive fiscal quarters most recently ended on or prior to the extent necessary date of such payment, calculated on a pro forma basis as if such payment were made on the last day of such period (and excluding any such payments previously made pursuant to this clause during such four quarter period but attributed for Allied Waste purposes of this calculation to pay for taxes and the last day of a prior period which day does not occur in such four quarter period) is not less than the ratio applicable to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
such period of four fiscal quarters under Section 6.12, (v) Allied Waste the Borrower and the Subsidiaries may make Restricted Payments consisting of the repurchase or other acquisition of shares of, or options to purchase shares of, capital stock of the Borrower or any of its Subsidiaries from employees, former employees, directors or former directors of the Borrower or any Subsidiary (or their permitted transferees), in each case pursuant to stock option plans, stock plans, employment agreements or other employee benefit plans approved by the board of directors of the Borrower; provided that no Default has occurred and is continuing; and provided further that the aggregate amount of such Restricted Payments made after the Original Restatement Effective Date shall not exceed $10,000,000, (vi) the Subsidiaries may declare and pay cash dividends in respect to the Borrower; provided that the Borrower shall, within a reasonable time following receipt of any such payment, use all of the Sponsor Preferred Stock payable solely proceeds thereof for a purpose set forth in additional shares Section 5.10(b) (including the payment of Sponsor Preferred Stock dividends required or permitted pursuant to this Section 6.08(a)), (or other capital stock, as provided thereinvii) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary and the Subsidiaries may declare and pay cash dividends with respect to Allied Waste the Equity Interests set forth on Schedule 6.08(a) to the extent, and only to the extent, required pursuant to the terms of such Equity Interests or any other agreement in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends effect on the Sponsor Preferred Stock Effective Date and (including on shares theretofore paid viii) so long as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuingcontinuing or would result therefrom, the Borrower may redeem or repurchase shares of the Borrower’s and/or its Subsidiaries’ (including Rite Aid Lease Management Company’s) Preferred Stock (A) solely with Net Cash Proceeds received by the Borrower from issuances of its common stock after the Original Restatement Effective Date, provided that any such repurchase or redemption is effected within 150 days after the receipt of such proceeds or (B) with other funds available to the Borrower if, immediately after giving effect to any such redemption or repurchase, the Borrower shall have Revolver Availability of more than $100,000,000.
(b) The Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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 Indebtedness, except:
(i) payments or prepayments of Indebtedness created under the Senior Loan Documents;
(ii) payments of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted pursuant to Section 6.01(a);
(iii) prepayments of Indebtedness permitted pursuant to clause (vii), (viii) or (ix) of Section 6.01(a) with the proceeds of Indebtedness permitted pursuant to clause (vii), (viii) or (ix) of Section 6.01(a);
(iv) payments of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) provided no Default has occurred and is continuing or would result therefrom, Optional Debt Repurchases of Inside Indebtedness and, to the extent permitted by paragraph (c) of this Section, Optional Debt Repurchases of Outside Indebtedness;
(vi) repurchases, exchanges or redemptions of Indebtedness for consideration consisting solely of common stock of the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Qualified Preferred Stock;
(vii) prepayments of Capital Lease Obligations in connection with the sale, closing or relocation of Stores;
(viii) prepayments of Indebtedness in connection with the incurrence of Refinancing Indebtedness permitted pursuant to Section 6.01(a)(ii) or (x);
(ix) prepayments of Indebtedness permitted pursuant to Section 6.01(a)(iii), if permitted by the subordination provisions applicable to such Indebtedness; providedand
(x) unless an Event of Default shall have occurred and be continuing, however, that all cash dividend payments in accordance with this clause mandatory prepayments of Indebtedness and interest under the New Notes and/or the Bridge Facility.
(vic) are subject to The Borrower and the satisfaction Subsidiaries will not effect Optional Debt Repurchases of the following additional conditions on the date of such dividend payment Outside Indebtedness unless immediately prior and after giving effect thereto:to any such Optional Debt Repurchases, (x) no Default or Event of Default shall have occurred and be continuing and (y) the Borrower shall have Revolver Availability of more than $100,000,000.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Holdings nor the Borrower will, nor will it they permit any of its other Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur enter into any obligation (contingent or otherwise) transaction the economic effect of which is substantially similar to do soany Restricted Payment, except:
except (i) Allied Waste Holdings and the Borrower may declare and pay dividends with respect to its their capital stock payable solely in additional shares of its capital their respective common stock;
, (ii) Restricted Subsidiaries of (other than the Borrower Borrower) may declare and pay dividends ratably with respect to their capital stock;
, (iii) Allied Waste Holdings may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 3,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of Holdings and the Borrower and its Restricted Subsidiaries;
; (iv) so long as no Default shall have occurred and be continuing or result from the making of such payment, the Borrower or any Restricted Subsidiary may declare pay dividends to Holdings at such times and make dividend payments in such amounts as shall be necessary to Allied Waste solely permit Holdings to discharge, to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct permitted hereunder, its business in accordance with Sections 5.01(b) and 6.10;
permitted liabilities; (v) Allied Waste on and after the Leverage Target Date, Holdings may declare and pay dividends in cash with respect to its convertible preferred stock outstanding as of the Sponsor Preferred Stock payable solely Amendment No. 4 Effective Date in additional shares of Sponsor Preferred Stock an amount not exceeding $40,000,000 in any fiscal year and the Borrower may declare and pay dividends to Holdings to permit Holdings to declare and pay such dividends and (or other capital stock, as provided thereinvi) and at any time after June 30, 2004the consummation of the Structured Note Financing, the Borrower or any Restricted Subsidiary may declare and pay cash dividends a dividend to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on Holdings so long as (x) the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that dividend shall not exceed the principal amount of the Structured Note Bridge Indebtedness outstanding at the time such dividend is paid plus accrued interest thereon, (y) no Default or Event of Default has occurred and is then continuing;
continuing or would result therefrom and (viz) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; providedimmediately upon receipt thereof, however, that Holdings shall apply all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date proceeds of such dividend payment and after giving effect thereto:to repay in full the Structured Note Bridge Indebtedness then outstanding.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Williams Companies Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNeither Holdings nor the Borrower will, nor will it they permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste Holdings may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital common stock;
, (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
, (iii) Allied Waste provided no Event of Default is continuing or would result therefore, Holdings and the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, Payments pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of Holdings, the Borrower and its Restricted Subsidiaries;
; provided that the amount thereof, taken together with any payments or transfers of cash, assets or debt securities pursuant to clause (f) of Section 6.09, do not exceed $15,000,000 in any fiscal year, (iv) provided no Event of Default is continuing or would result therefrom, the Borrower or may pay dividends to Holdings at any Restricted Subsidiary time in such amounts as may declare and make dividend payments be necessary to Allied Waste solely to the extent necessary for Allied Waste permit Holdings to pay for taxes its expenses and to pay administrative expenses to conduct its business liabilities incurred in accordance with Sections 5.01(b) and 6.10;
the ordinary course (other than payments in respect of Indebtedness or Restricted Payments), (v) Allied Waste may declare and pay dividends in respect provided no Event of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (Default is continuing or other capital stock, as provided therein) and at any time after June 30, 2004would result therefrom, the Borrower may make Restricted Payments to Holdings, and Holdings may, in turn, make such Restricted Payments to the Parent (x) if the Leverage Ratio (determined on a pro forma basis after giving effect to such Restricted Payment) as of the last day of the period of four consecutive fiscal quarters most recently ended on or any prior to the date of such Restricted Subsidiary may pay cash dividends Payment is less than 4.00 to Allied Waste 1.00 or (y) otherwise, in an aggregate cumulative amount not to exceed 50% of Quarterly Excess Cash Flow with respect to each fiscal quarter of the Borrower ending on or after March 31, 2008 in which Quarterly Excess Cash Flow is greater than $0 minus 100% of the absolute value of Quarterly Excess Cash Flow with respect to each fiscal quarter of the Borrower ending on or after March 31, 2008 in which Quarterly Excess Cash Flow is less than $0 minus the amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance any other Designated Excess Cash Expenditures made with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
Quarterly Excess Cash Flow, (vi) the Borrower or any Restricted Subsidiary may pay cash dividends Payments in amounts as shall be necessary to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stockmake Tax Payments; provided, however, provided that all cash dividend payments in accordance with Restricted Payments made pursuant to this clause (vi) are subject used by the Parent or Holdings for the purpose specified in this clause (vi) within 30 days of receipt thereof, (vii) provided no Event of Default is continuing or would result therefrom, the Borrower may from time to time pay cash dividends to Holdings and Holdings may, in turn, use the proceeds thereof to pay cash dividends to the satisfaction Parent, in each case in an amount not in excess of the following additional conditions regularly scheduled cash interest payable during the next period of 30 days on any Qualifying Parent Indebtedness (including Base Ultimate Parent QPI and Base Parent QPI), provided, however, that (A) any such dividends relating to any such cash interest payment must be paid not earlier than 30 days prior to the date when such cash interest is required to be paid by the Parent or the Ultimate Parent, as applicable, and the proceeds must (except to the extent prohibited by applicable subordination provisions) be applied by the Parent or the Ultimate Parent, as applicable, to the payment of such interest when due, (B) no payment of dividends may be made pursuant to this clause (vii) in respect of Indebtedness of the Parent or Ultimate Parent, as applicable, unless at the time of the incurrence of such Indebtedness (other than Base Parent QPI or Base Ultimate Parent QPI outstanding on the date of such dividend payment Closing Date), and after giving effect thereto, the QPI Issuance Conditions were satisfied, (C) no dividends may be made pursuant to this clause (vii) in respect of the Indebtedness described in clause (a)(ii) of the definition of Existing Parent Indebtedness and (D) the Borrower and its Subsidiaries shall be in Pro Forma Compliance after giving effect to the payment of any such dividends pursuant to this clause (vii), (viii) provided no Event of Default is continuing or would result therefrom, the Borrower may pay cash dividends to Holdings, and Holdings may, in turn, pay cash dividends to the Parent, and the Parent may, in turn, pay cash dividends to the Ultimate Parent, to the extent such cash is immediately recontributed as an equity contribution to the Parent and, in turn, to Holdings and, in turn, to the Borrower; provided that such contribution shall not constitute Equity Proceeds for purposes of this Agreement and (ix) provided no Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments to Holdings, and Holdings may, in turn, make such Restricted Payments to the Parent in an aggregate amount not to exceed $10,000,000 during any fiscal year of the Borrower.
(b) The Parent, Holdings and the Borrower will not, nor will they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any 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 Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Senior Subordinated Debt, Permitted Subordinated Indebtedness, Qualifying Parent Indebtedness, Non-Cash Pay Debt or other subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) prepayment of Capital Lease Obligations in an aggregate cumulative amount from and after the Closing Date not exceeding $5,000,000;
(vi) provided no Event of Default is continuing or would result therefrom, Optional Repurchases of other Indebtedness (x) if the Leverage Ratio (determined on a pro forma basis after giving effect to such Optional Repurchase) as of the last day of the period of four consecutive fiscal quarters most recently ended on or prior to the date of such Optional Repurchase is less than 4.00 to 1.00 or (y) involving cumulative expenditures in any fiscal year not in excess of an amount equal to the Borrower’s Portion of Excess Cash Flow for the immediately preceding fiscal year less the amount of other Designated Excess Cash Expenditures made with such Borrower’s Portion of Excess Cash Flow;
(vii) provided no Event of Default is continuing or would result therefrom, Optional Repurchases of other Indebtedness made with Designated Equity Proceeds (viii) provided no Event of Default is continuing or would result therefrom, refinancings or redemptions of the Senior Unsecured Debt and the Senior Subordinated Debt with the proceeds of Incremental Term Loans or Incremental Revolving Loans; and
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste the Borrower may declare and pay dividends with respect to any class of its capital stock payable solely in additional shares of its capital such class of stock;
, (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
, (iii) Allied Waste the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and Payments on the Effective Date in connection with the Recapitalization in accordance with and as contemplated by the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
Merger Agreement, (iv) the Borrower may repurchase stock or stock options purchased by or granted to members of senior management (other than the Grays) and other key employees pursuant to a Borrower stock purchase and option plan in the event any such employee is terminated for any reason, but in no event shall the aggregate amount of all such repurchases exceed $500,000 in any fiscal year; provided that the amount of Restricted Subsidiary Payments permitted under this clause (iv) in any fiscal year shall be increased on a cumulative basis by an amount equal to the total unused amount of Restricted Payments permitted by this clause (iv) for the preceding year; (v) the Borrower shall accrue the ability to repurchase Xxxx Common Stock and Xxxx Preferred Stock and may declare repurchase Xxxx Common Stock and make dividend payments Xxxx Preferred Stock as follows: (A) the Borrower shall accrue the ability to Allied Waste solely repurchase Xxxx Common Stock and Xxxx Preferred Stock in an aggregate amount not to exceed $2,500,000 during any Test Period; provided that any amount of Xxxx Common Stock and Xxxx Preferred Stock which the Borrower accrues the ability to but does not repurchase in any Test Period may be carried forward to subsequent Test Periods; provided further, that notwithstanding such accrual, the Borrower (1) shall only repurchase Xxxx Common Stock to the extent necessary required by the provisions of the Stockholders’ Agreement, as in effect as of the Effective Date, and (2) shall only repurchase Xxxx Common Stock and/or Xxxx Preferred Stock so long as no Default shall have occurred and be continuing on the date of any such repurchase or would result from such repurchase; and (B) on the last day of any Test Period, the Borrower may repurchase Xxxx Common Stock and Xxxx Preferred Stock in an additional aggregate amount of up to $2,500,000; provided that (1) no Default shall have occurred and be continuing on such day or would result from such repurchase and (2) on the date of and after giving effect to such repurchase (and the incurrence of any Indebtedness to be incurred on such date), the Leverage Ratio shall be less than 3.5 to 1.0, (for Allied Waste purposes of determining the Leverage Ratio for this clause, Consolidated EBITDA shall be calculated for the period of four consecutive fiscal quarters of the Borrower ended on the last day of the most recent fiscal quarter for which financial statements have been delivered to the Administrative Agent under Section 5.01(a) or (b)); provided further, that the Borrower shall only repurchase Xxxx Common Stock to the extent required by the provisions of the Stockholders’ Agreement, as in effect as of the Effective Date; (vi) on the last day of any Test Period, the Borrower may pay for taxes accrued dividends with respect to the Xxxx Preferred Stock in cash in an aggregate amount not to exceed $250,000; provided that (1) no Default shall have occurred and be continuing on such day or would result from such payment and (2) on the date of and after giving effect to such payment (along with (A) any payment pursuant to clause (v)(B) above on such date and (B) the incurrence of any Indebtedness to be incurred on such date), the Leverage Ratio (determined as set forth in clause (v)(B)(2) above) shall be less than 3.5 to 1.0; (vii) the Borrower may pay administrative expenses cash dividends with respect to conduct its business any Permitted Acquisition Preferred Stock; (viii) the Borrower may redeem or repurchase Permitted Acquisition Preferred Stock in accordance with Sections 5.01(bthe terms thereof; (ix) on the last day of any Test Period following the fifth anniversary of the Effective Date, the Borrower may pay dividends with respect to the PIK Preferred Stock in cash; provided that (1) no Default shall have occurred and 6.10;be continuing on such day or would result from such payment and (2) on the date of and after giving effect to such payment (and the incurrence of any Indebtedness to be incurred on such date), the Borrower and its Subsidiaries shall be in compliance with the covenant contained in Section 6.13 (with the Leverage Ratio determined as set forth in clause (v)(B)(2) above); (x) the Borrower may redeem the PIK Preferred Stock in full with the proceeds of the issuance of Permitted Subordinated Indebtedness in compliance with Section 6.01(a)(x); provided that no Default shall have occurred and be continuing on such day or would result from such redemption; and (xi) the Borrower may, and may permit any Subsidiary to, make payments to the Vestar Group pursuant to and to the extent expressly contemplated by the Vestar Management Agreement.
(vb) Allied Waste may declare The Borrower will not, and will not permit any Subsidiary to, make or agree to pay dividends or make, directly or indirectly, any payment or other distribution (whether in cash securities or other property) of or in respect of principal of or interest on the Subordinated Debt or the 15¼% Senior Subordinated Notes, 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, cancelation or termination of any of the Subordinated Debt or the 15¼% Senior Subordinated Notes, except (i) payment of regularly scheduled interest payments as and when due, other than payments prohibited by the subordination provisions thereof, (ii) payments in respect of the Sponsor Preferred Stock payable solely in additional shares redemption, repurchase and retirement of Sponsor Preferred Stock 15¼% Senior Subordinated Notes, including any premium (or other capital stock, as provided thereinif any) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends accrued and unpaid interest thereon to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of the following additional conditions on the date of such dividend redemption or repurchase, at any time with and to the extent of the proceeds of any Additional Tranche B Term Loans, and (iii) payments in respect of the redemption, repurchase and retirement of 15¼% Senior Subordinated Notes, including any premium (if any) and accrued and unpaid interest thereon to the date of such redemption or repurchase, in an amount not exceeding $15,000,000 in the aggregate; provided that (A) at the time of any such payment pursuant to this clause (iii), no Revolving Loans shall be outstanding and after giving effect thereto:(B) all 15¼% Senior Subordinated Notes redeemed or repurchased pursuant to the preceding clauses (ii) and (iii) shall immediately be canceled.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor and will it not permit any of its Restricted Core Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment, or incur any obligation unless:
(contingent or otherwisea) such Restricted Payment is a payment of interest on Subordinated Indebtedness that (1) is due and payable and (2) when made is permitted to do sobe made under the subordination terms contained in the instrument evidencing such Subordinated Indebtedness,
(b) such Restricted Payment is a payment of principal of Subordinated Indebtedness that (1) is due and payable, except:(2) was counted as Fixed Charges at the time of the incurrence of such Subordinated Indebtedness pursuant to Section ------- 6.01 and (3) when made is permitted to be made under the subordination terms ---- contained in the instrument evidencing such Subordinated Indebtedness,
(c) at the time of and after giving effect to such Restricted Payment,
(i) Allied Waste may declare no Default shall have occurred and pay dividends with respect to its capital stock payable solely in additional shares be continuing or shall result from the making of its capital stock;such Restricted Payment,
(ii) Restricted Subsidiaries the Cash Flow to Fixed Charges Ratio for the previous four fiscal quarters of the Borrower may declare and pay dividends ratably with respect is equal to their capital stock;or greater than 1.7 to 1.0, and
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, The projected Cash Flow to Fixed Charges Ratio (determined on a pro forma basis which is (A) consistent with the then applicable power marketing plan delivered pursuant to 119 and Section 4.01(j) or 5.14, as --------------- ---- applicable, or (B) if no such power marketing plan is available, consistent with projections prepared by the Borrower in accordance good faith based on assumptions consistent in all material respects with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements relevant contracts and agreements, historical operations, and the Borrower's good faith projections of future revenues and projections of operating and maintenance expenses for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business Core Subsidiaries in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste may declare and pay dividends in respect light of the Sponsor Preferred Stock payable solely then existing or reasonably expected regulatory and market environments in additional shares the markets in which its assets is or will be operated and upon the assumption that there will be no early redemption or prepayments of Sponsor Preferred Stock (Indebtedness other than early redemptions or other capital stock, as provided thereinprepayments occurring concurrently with such incurrence of Indebtedness) and at any time after June 30, 2004, for each of the Borrower two following periods of four full fiscal quarters shall be equal to or any Restricted Subsidiary may pay cash dividends greater than 1.7 to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock1.0; provided in each case that further that, so long as no Default or Event of Default has shall have occurred and is then continuing;
(vi) be continuing or shall result from the making of such Restricted Payment, this Section 6.05 shall not prohibit the redemption, repurchase, ------------ retirement, defeasance or other acquisition of any Subordinated Indebtedness of the Borrower or of any Restricted Subsidiary may pay cash dividends to Allied Waste Equity Interests in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon Borrower in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; providedexchange for, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction or out of the following additional conditions on Net Proceeds of the date of such dividend payment and after giving effect thereto:substantially concurrent sale (other than to a Subsidiary) of, Equity Interests in the Borrower.
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Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries the Subsidiary Loan Parties 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:, to the extent that no Default has occurred and is continuing or would result therefrom (other than any Restricted Payment permitted under (iv) below to consummate the Public Tender Offer, with respect to which the condition of the absence of a Default shall not apply):
(i) Allied Waste the Borrower may declare and pay dividends with respect to its capital stock Equity Interests payable solely in additional shares Equity Interests of its capital stockthe same class;
(ii) Restricted Subsidiaries of the Borrower Subsidiary Loan Parties may declare and pay dividends ratably with respect to their capital stockEquity Interests;
(iii) Allied Waste the Borrower may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 500,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;; and
(iv) the Borrower may make Restricted Payments in cash consisting of repurchases or redemptions of shares of the Borrower's common stock (including the Public Tender Offer and the Private Repurchase) in an aggregate amount on and after the Effective Date, determined at the time of each such Restricted Payment, not to exceed: (a) $200,000,000 if the Total Leverage Ratio, measured prior to giving effect to such Restricted Payment and any Indebtedness incurred to finance such Restricted Payment, or the Pro Forma Total Leverage Ratio, measured after giving effect to such Restricted Payment and any Indebtedness incurred to finance such Restricted Payment, is greater than or equal to 6.50 to 1.00, (b) $300,000,000 if the Total Leverage Ratio, measured prior to giving effect to such Restricted Payment and any Indebtedness incurred to finance such Restricted Payment, and the Pro Forma Total Leverage Ratio, measured after giving effect to such Restricted Payment and any Indebtedness incurred to finance such Restricted Payment is less than 6.50 to 1.00 but greater than or equal to 4.50 to 1.00, and (c) an unlimited amount, if the Total Leverage Ratio, measured prior to giving effect to such Restricted Payment and any Indebtedness incurred to finance such Restricted Payment, or the Pro Forma Total Leverage Ratio, measured after giving effect to such Restricted Payment and any Indebtedness incurred to finance such Restricted Payment is less than 4.50 to 1.00.
(b) The Borrower will not, nor will it permit any Subsidiary Loan Party to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any Restricted Subsidiary may declare payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment or prepayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and make dividend principal payments to Allied Waste solely as and when due in respect of any Indebtedness permitted by Section 6.01;
(iii) refinancings of Indebtedness to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;permitted by Section 6.01; and
(viv) Allied Waste may declare and pay dividends in respect payment of secured Indebtedness that becomes due as a result of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (voluntary sale or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction transfer of the following additional conditions on the date of property or assets securing such dividend payment and after giving effect thereto:Indebtedness.
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Samples: Credit Agreement (Cumulus Media Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary 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:
(i) Allied Waste each of the Loan Parties may declare and pay dividends with respect to its capital common stock payable solely in additional shares of its capital 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 Borrowers’ Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;Equity Interests,
(iii) Allied Waste the Borrowers may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 100,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower Borrowers and its Restricted their Subsidiaries;,
(iv) so long as there exists no Event of Default, the Borrower Borrowers may pay dividends or any Restricted Subsidiary may declare and make dividend payments distributions to Allied Waste solely to their respective shareholders/members in an aggregate amount not greater than the extent amount necessary for Allied Waste such shareholders/members to pay for taxes their actual state and to pay administrative expenses to conduct its business United States federal income tax liabilities in accordance with Sections 5.01(b) and 6.10;respect of income earned by the Borrowers after deducting any unused prior losses, and
(v) Allied Waste the Borrowers may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or make other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock Payments (including on shares theretofore paid as dividends thereon in accordance with this clause (v)the form of cash dividends) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject to the satisfaction of each of the following additional Payment Conditions and of the applicable terms and conditions of Sections 6.01 and 6.04.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the date purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted under Section 6.01, other than payments in respect of Subordinated Indebtedness prohibited by the subordination provisions of the applicable Subordination Agreement;
(iii) 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 voluntary sale or transfer of the property or assets securing such dividend payment and after giving effect thereto:Indebtedness to the extent such sale or transfer is permitted by the terms of Section 6.05.
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Restricted Payments; Certain Payments of Indebtedness. (a) Allied Waste will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
except (i) Allied Waste may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock;
, (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
, (iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to 119 and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
, (iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b5.01B(b) and 6.10;
6.10B, (v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and at any time after June 30, 2004, the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in an aggregate cumulative amount of not more than $75,000,000 in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with this clause (v)) and Allied Waste may use such dividends to pay cash dividends not exceeding an aggregate amount of $75,000,000 on such Sponsor Preferred Stock; provided in each case that no Default or Event of Default has occurred and is then continuing;
(vi) the Borrower or any Restricted Subsidiary may pay cash dividends to Allied Waste in order to permit Allied Waste to pay cash dividends on the Sponsor Preferred Stock (including on shares theretofore paid as dividends thereon in accordance with clause (v) hereof) and Allied Waste its Restricted Subsidiaries may use such dividends to pay cash dividends on the Sponsor Preferred Stock; provided, however, that all cash dividend payments in accordance with this clause (vi) are subject make Restricted Payments to the satisfaction extent required by the terms of the following additional conditions its joint venture or similar agreements in effect on the date of such dividend payment hereof and listed on Schedule 6.08A; provided that immediately prior, and after giving effect theretoto, such Restricted Payment, no Senior Event of Default shall have occurred and be continuing.
(b) Allied Waste will not nor will it permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any such Subsidiary to (1) pay any dividends or make any other distributions on its capital stock or any other ownership interest or (2) make or repay any loans or advances to the Borrower or the parent of such Subsidiary, except for:
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