Restricted Payments, etc. On and at all times after the date hereof: (a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower; (b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note; (c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and (d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that, (e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as a
Appears in 2 contracts
Samples: Credit Agreement (Brand Scaffold Services Inc), Credit Agreement (Brand Scaffold Services Inc)
Restricted Payments, etc. On and at all times after the date hereofDeclare or make, directly or indirectly, any Restricted Payment, except that:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to each Subsidiary may make Restricted Payments to Holdco to any Borrower, any Subsidiaries of the extent necessary to enable Holdco to Borrowers that are either Subsidiary Guarantors or Subsidiaries (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as (A) no Event of Default shall have occurred and be continuing on at the date time of any action or would result therefrom) and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is declared being made;
(ii) the Loan Parties and each Subsidiary may declare and make Restricted Payments payable solely in the common stock or to be made, nor would a Default result from the making other common Equity Interests (but not Debt Equivalents) of such Loan Party or Subsidiary;
(iii) so long as no Cash Dominion Event is then in existence or would otherwise arise therefrom, Holdings and the Parent Borrower may (and the Subsidiaries of Holdings may declare and make Restricted PaymentPayments to Holdings and the Parent Borrower not to exceed an amount necessary to permit Holdings and the Parent Borrower to) redeem or repurchase Equity Interests (or Equity Equivalents) from future, (B) after giving effect to the making present or former officers, employees, managers, consultants and directors of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees Group Company (or their estates of beneficiaries under their estates), in all cases only spouses or former spouses) (x) upon the death, permanent disability, retirement, retirement or termination of employment or of any such Person and (y) pursuant to the terms of such any management equity plan or stock option plan or any other agreement management benefit or employee benefit plan;
(iv) the Subsidiaries of Holdings may declare and make Restricted Payments to Holdings and the Parent Borrower not to exceed an amount necessary to permit Holdings and the Parent Borrower to pay (A) general corporate overhead expenses of Holdings or the Parent Borrower (including indemnification claims made by directors or officers of Holdings or the Parent Borrower) to the extent such expenses are attributable to the ownership or operation of Holdings, Parent Borrower and or Subsidiaries; (B) U.S. or Canadian federal, state and local income taxes, to the extent such income taxes are attributable to the income of Holdings, Parent Borrower and the Restricted Subsidiaries and, to the extent of the amount actually received from its Unrestricted Subsidiaries, in amounts required to pay such taxes to the extent attributable to the income of such Unrestricted Subsidiaries; (C) reasonable fees and expenses incurred in connection with any unsuccessful debt or equity offering by a Loan Party; (D) customary salary, bonus and other benefits payable to officers and employees of Holdings or the Parent Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of Holdings, Parent Borrower and their Subsidiaries; and (E) any non-cash “deemed dividend” resulting from such parent company offsetting income against losses of Holdings or Parent Borrower which does not involve any cash distribution by the Holdings or Parent Borrower;
(v) if the Specified Conditions are satisfied, Holdings may (and the Subsidiaries of Holdings may declare and make Restricted Payments to Holdings not to exceed an amount necessary to permit Holdings to) make other Restricted Payments; provided that the aggregate amount of all such Restricted Payments from and after the Effective Date, does not exceed the sum of the amounts permitted for Restricted Payments (as defined in the Note Indenture) pursuant to Sections 1010(a)(c) of the Note Indenture and 1010(b)(12) of the Note Indenture;
(vi) each Loan Party and each Subsidiary may make non-cash repurchases of Equity Interests deemed to occur upon the exercise of stock options or warrants (a) if such Equity Interest represents a portion of the exercise price of such option and (b) for purposes of tax withholding by Holdings or the Parent Borrower in connection with such exercise;
(vii) Loan Parties may accrue dividends on any of their Equity Interests other than Debt Equivalents; provided that such dividends may not be paid in cash (except as otherwise permitted hereunder) or otherwise (other than with Equity Interests);
(viii) Holdings may (and the Subsidiaries of Holdings may declare and make Restricted Payments to Holdings not to exceed an amount necessary to permit Holdings to) make other Restricted Payments not otherwise permitted by this Section 7.06, so long as immediately before and immediately after giving effect to any such Restricted Payment, (x) no Event of Default has occurred and is continuing and (y) there are no Outstanding Amounts under which either Facility;
(ix) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Loan Parties or any Equity Interests of any direct or indirect parent company of the Loan Parties, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of any direct or indirect parent of the Loan Parties (in each case, other than any Debt Equivalents); and
(x) Holdings may (and the Subsidiaries of Holdings may declare and make Restricted Payments to Holdings not to exceed an amount necessary to permit Holdings to) make the Proceeds Payments (as defined in the Note Indenture as in effect on the date hereof) in an aggregate amount not to exceed $125,000,000 provided, that, (A) such dividends shall be paid no later than April 15, 2012, and (B) either (i) the Specified Conditions are satisfied, or (ii) there are no Outstanding Amounts (other than L/C Obligations in an aggregate outstanding amount not to exceed $15,000,000);
(xi) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if (A) at the date of declaration such payment would have complied with the provisions of this Section 7.06, and (B) the Specified Conditions are satisfied or, with respect to any dividends or distribution in clause (x) above, either (i) the Specified Conditions are satisfied, or (ii) there are no Outstanding Amounts (other than L/C Obligations in an aggregate outstanding amount not to exceed $15,000,000);
(xii) Restricted Payments permitted by Sections 1010(b)(7) and 1010(b)(14) of the Note Indenture so long as the Specified Conditions are satisfied;
(xiii) payments not to exceed $2.5 million in the aggregate to enable Holdings to make payments to holders of its Equity Interests in lieu of fractional shares of Capital Stockits Equity Interests;
(xiv) Holdings and its Subsidiaries may, optionswithout duplication, related rights make Restricted Payments in an aggregate amount not to exceed $7,500,000; provided, that, (A) such Restricted Payments shall be paid solely to officers, directors or similar securities were issued other employees of Holdings pursuant to the 2009 Equity Plan of Masonite Inc. (collectively referred as in effect on the Effective Date) and (B) the Payment Conditions are satisfied; and
(xv) Holdings and its Subsidiaries may, without duplication, make Restricted Payments provided that (A) the Payment Conditions are satisfied and (B) there are no Outstanding Amounts (other than L/C Obligations in an aggregate outstanding amount not to exceed $15,000,000). To the extent that Holdings or its Subsidiaries are permitted to make Restricted Payments pursuant to this Section 7.06, the same may be made as aa loan or advance to the recipient thereof, and in such case the amount of such loan or advance so made shall reduce the amount of Restricted Payments that may be made by Holdings and its Subsidiaries in respect thereof.
Appears in 2 contracts
Samples: Credit Agreement (Masonite International Corp), Credit Agreement (Masonite International Corp)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower Each Credit Party will not, and will not permit any of its Subsidiaries toSubsidiaries, (i) to make any payment or prepayment of principal ofRestricted Payment, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause Restricted Payment, other than:
(a)) Restricted Payments (i) for customary director indemnification payments to the directors (or equivalent persons) of such Person, (ii) for reasonable and customary fees to outside directors (or equivalent persons) of such Person and for customary director (or equivalent persons) and officers insurance premiums owed by such Person, (iii) for financial, other reporting and similar customary administrative or overhead costs and expenses of such Person, (iv) for obligations incurred in ordinary course of business to the extent relating to activities permitted under this Agreement and (v) for Tax Distributions;
(b) payments by any Subsidiary of any Credit Party to its direct parent (other than the Borrower) so long as such parent is (i) a direct or indirect Wholly-Owned Subsidiary of any Credit Party, (ii) the Borrower or (iii) a direct parent (other than the Borrower or a direct or indirect parent of the Borrower) of a non-Wholly-Owned Subsidiary, in which case such payment shall be made pro rata to such parent based on its relative ownership interests in the class of equity receiving such Restricted Payment;
(c) above Restricted Payments by any Credit Party or any of its Subsidiaries to pay dividends with respect to its Capital Stock payable solely in additional shares of its Capital Stock (other than Disqualified Capital Stock);
(d) Restricted Payments to repurchase, redeem or otherwise acquire or retire for value any Capital Stock of the Borrower or its Subsidiaries held by any current or former employee, director, consultant or officer (or their transferees, spouses, ex-spouses, estates or beneficiaries under their estates) of any Credit Party or Subsidiary of any Credit Party pursuant to any employee equity subscription agreement, stock option agreement or stock ownership arrangement, including upon the death, disability, retirement, severance or termination of employment or service of such Persons to the extent (i) not exceeding $1,000,000 in the aggregate during any fiscal year (plus (x) any amounts funded with issuances of Capital Stock of the Borrower (or any direct or indirect parent entity thereof) or proceeds in respect thereof used to repurchase such Capital Stock and (y) amounts solely in the form of forgiveness of Indebtedness of such Persons owing to the Borrower or any Credit Party on account of redemptions or repurchases of the Capital Stock of the Borrower held by such Persons) and (ii) both before and after giving effect to any such payment, no Specified Event of Default or Financial Covenant or Financial Reporting Event of Default exists or would immediately thereafter occur as a result thereof; provided that to the extent any amounts remain unused under subclause (i) of this clause (d) are herein collectively referred in a given fiscal year of the Borrower may be carried forward and made in the immediately succeeding fiscal year of the Borrower without regard to as "Restricted Payments"); provided, however, that,any caps set forth herein;
(ei) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments in connection with the Profits Interest Agreement and (ii) Restricted Payments in an aggregate amount of up to Holdco $1,000,000 per fiscal year to pay advisory fees pursuant to the XXXX Holdings Ltd. Advisory Services Agreement plus any amounts accrued and not paid for periods prior to the Closing Date;
(f) payments of Indebtedness of the type described in Section 10.01(l) to the extent necessary to enable Holdco to made in conformity with the terms of Section 10.01(l);
(ig) pay its overhead expenses Restricted Payments made using either, or a combination of, the proceeds of the Class F Equity Issuance or the Initial Term Loan Facility in an aggregate principal amount not to exceed $250,000 20,000,000.
(h) Restricted Payments (x) in connection with the redemption of the Class F Member Units outstanding as of the Closing Date (pursuant to and as defined in the aggregate in any Fiscal Year, (iiBorrower’s Operating Agreement) pay its taxes and (iiiy) so long in connection with the redemption of the Senior Preferred Member Units and/or the Class E Member Units (in each case, pursuant to and as defined in the Borrower’s Operating Agreement); provided, that, solely in the case of subclause (Ay) under this clause (h), the Total Leverage Ratio on a Pro Forma Basis after giving effect to all such Restricted Payments under such subclause (y), shall not exceed an amount equal to 1.50x less than the Closing Date Leverage Ratio;
(i) to the extent constituting Restricted Payments, payments of Indebtedness permitted pursuant to Section 10.13;
(j) other Restricted Payments in an aggregate principal amount not to exceed $1,000,000 in the aggregate; provided that no Event of Default shall have occurred and be continuing on or would immediately result therefrom; provided further that any unused portion of this clause (j) may be reallocated to Investments in Section 10.05(v); and
(k) Restricted Payments utilizing the date such Restricted Payment is declared Available Amounts Basket; provided that (i) no Event of Default shall have occurred and be continuing or to be madewould result therefrom, nor would a Default result from and (ii) solely for purposes of utilizing availability under clause (a)(i) of the making of such Restricted PaymentAvailable Amounts Basket, (B) after giving effect to the making of any such Restricted Payment on a Pro Forma Basis, the Borrower Total Leverage Ratio shall be in pro forma compliance with not exceed an amount equal to 1.00x less than the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aClosing Date Leverage Ratio.
Appears in 2 contracts
Samples: Credit Agreement (ARKO Corp.), Credit Agreement (ARKO Corp.)
Restricted Payments, etc. On and at all times after None of the date hereofGroup Companies will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) of such Person), except that:
(ai) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower may make Restricted Payments to the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower;
(bii) any non-Wholly-Owned Subsidiary of the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to may make Restricted Payments to Holdco the Borrower or to any Wholly-Owned Subsidiary of the Borrower or ratably to all holders of its outstanding Equity Interests;
(iii) Holdings and Intermediate Holdings may redeem or repurchase Equity Interests (or Equity Equivalents) or to make payments on notes issued in connection with the prior redemption or purchase of such Equity Interests and permitted pursuant to Section 7.01(xii) from (A) officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise or (B) other holders of Equity Interests or Equity Equivalents in Holdings and Intermediate Holdings, so long as the purpose of such purchase is to acquire stock for reissuance to new officers, employees and directors (or their estates) of any Group Company, to the extent necessary to enable Holdco to (i) pay its overhead expenses so reissued within 12 months of any such purchase; provided that in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as all such cases (A) no Default shall have occurred and be continuing on the date such Restricted Payment or Event of Default is declared then in existence or to be made, nor would a Default result from the making of such Restricted Paymentotherwise arise therefrom, (B) the aggregate amount of all cash distributed by the Borrower directly or indirectly to Holdings and Intermediate Holdings in respect of all such shares so redeemed or repurchased (or otherwise spent by Holdings and Intermediate Holdings) does not exceed $2,000,000 in any fiscal year of Holdings (with unused amounts being carried forward to succeeding fiscal years) or $10,000,000 in the aggregate from and after giving effect the Closing Date, and provided further that Holdings and Intermediate Holdings may purchase, redeem or otherwise acquire Equity Interests and Equity Equivalents of Holdings and Intermediate Holdings pursuant to this clause (iii) without regard to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants restrictions set forth in Section 7.2.4 the first proviso above for consideration consisting of the proceeds of key man life insurance obtained for the most recent full Fiscal Quarter immediately preceding purposes described in this clause (iii);
(iv) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the date Borrower may make cash Restricted Payments, directly or indirectly, to Holdings and Intermediate Holdings, if Holdings and Intermediate Holdings promptly use such proceeds for the purposes described in clause (iii) above;
(v) the Borrower and Intermediate Holdings may make cash Restricted Payments, directly or indirectly, to Intermediate Holdings or Holdings (as the case may be) for the purpose of paying, and in amounts not to exceed the amount necessary to pay, (A) the then currently due fees and expenses of Holdings’ counsel, accountants and other advisors and consultants, and other operating and administrative expenses of Holdings (including employee and compensation expenditures and other similar costs and expenses) incurred in the ordinary course of business that are for the benefit of, or are attributable to, or are related to, including the financing or refinancing of, Holdings’ Investment in the Borrower and its Subsidiaries, (B) the then currently due fees and expenses of Holdings’ independent directors and observers and (C) the then currently due taxes payable by Holdings solely on account of the income of Holdings related to its Investment in the Borrower and its Subsidiaries and the reasonable expenses of preparing returns reflecting such taxes; provided that Holdings agrees to be obligated to contribute to the Borrower any refund Holdings receives relating to any such taxes and (D) so long as no Default or Event of Default is then in existence or would arise therefrom, other fees and expenses permitted under Section 7.09;
(vi) the Borrower may pay directly or indirectly to Intermediate Holdings or Holdings the amount that Holdings is required to pay for franchise, federal, state, local or other taxes as the common parent of an affiliated group (within the meaning of Section 1504 of the Code) and quarterly or annually for other taxes incurred by Intermediate Holdings or Holdings; provided that (A) such payments with respect to income taxes may be made only in respect of the period during which the Borrower is consolidated with Holdings for purposes of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, taxes and (CB) an Authorized Officer no such payment by the Borrower may be paid until receipt by the Administrative Agent of a certificate of the chief financial officer or chief accounting officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory acceptable to the Agents (including a calculation of the Administrative Agent demonstrating compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses foregoing provisions (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively payments being herein referred to as a(“Permitted Tax Dividends”).
(vii) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the Borrower may make Restricted Payments to Holdings, directly or indirectly, provided that (A) all proceeds thereof are applied by Holdings solely for the purposes of Section 7.08(d); and (B) no such Restricted Payment shall be made if an interest payment in respect of the Junior Debentures could not, but for such Restricted Payment, be made in accordance with Section 7.08(d);
(viii) Holdings and its Subsidiaries may make Restricted Payments made with Net Cash Proceeds of one or more Qualifying Equity Issuances within three Business Days following the receipt thereof; provided that, after giving effect to such Restricted Payment, no Change of Control shall have occurred;
(ix) Holdings and Intermediate Holdings may make noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; and
(x) cash payments by Holdings and Intermediate Holdings in lieu of the issuance of fractional shares upon exercise or conversion of Equity Equivalents.
Appears in 2 contracts
Samples: Credit Agreement (Hillman Companies Inc), Credit Agreement (Hillman Companies Inc)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the The Borrower will not, and will not permit any of its Restricted Subsidiaries to, (i) declare or make any payment or prepayment of principal ofa Restricted Payment, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any Restricted Payment, other than Restricted Payments made by Restricted Subsidiaries to the Borrower or other Restricted Subsidiaries; provided, however, that, notwithstanding any of the foregoing purposes foregoing, the Borrower may, without duplication,
(a) repurchase, redeem, or otherwise retire for value any shares of its Capital Stock (together with options or warrants in respect of any thereof) held by officers, directors and employees of the foregoing prohibited acts referred Borrower (or any of their respective estates or beneficiaries under such estates), in all cases upon the death, disability, retirement or termination of employment of such Persons, pursuant to a mandatory repurchase or redemption provision under the terms of the stock option plan, stock subscription agreement, shareholder agreement or other agreement under which such shares of Capital Stock (and options or warrants in respect of any thereof) were issued; provided, that the aggregate consideration paid for such repurchase, redemption or other retirement for value of such shares of its Capital Stock (together with options or warrants in respect of any thereof) shall not exceed $2,000,000 over the term of this Agreement;
(b) redeem, defease or otherwise prepay or retire the Subordinated Notes with the Net Equity Proceeds of a substantially concurrent sale of the Capital Stock of the Borrower (or warrants or options in respect thereof) to the extent such Net Equity Proceeds are not required to be applied to a mandatory prepayment of the Loans pursuant to clause (h) of Section 3.1.1; provided, that the aggregate amount of the Subordinated Notes so redeemed, defeased or otherwise prepaid or retired shall not, over the term of this Agreement, exceed 35% of the aggregate principal amount of the Subordinated Notes on the Closing Date; and
(c) declare, pay and make Restricted Payments in any Fiscal Year, commencing with the 2001 Fiscal Year, to the extent the aggregate amount of such Restricted Payments to be made by the Borrower pursuant to this clause (c), when added to the aggregate amount of all other such Restricted Payments made pursuant to this clause (c) during the Fiscal Year in which such Restricted Payment would be made, does not exceed the lesser of (x) $2,000,000 and (y) 50% of the Net Income of the Borrower for the immediately preceding Fiscal Year; provided further, however, that
(i) the Borrower may make any Restricted Payment permitted pursuant to clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) only so long as (A) both before and after giving effect to any such Restricted Payment, no Default shall have occurred and be continuing on continuing, and
(ii) in the date such case of any Restricted Payment is declared otherwise permitted pursuant to clause (b) or to be made(c) above, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in have delivered to the Administrative Agent (A) financial statements prepared on a pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of basis to give effect to such Restricted Payment for the period of four consecutive Fiscal Quarters ending with the Fiscal Quarter then last ended for which financial statements and the relevant financial information has Compliance Certificate relating thereto have been delivered to the Administrative Agent pursuant to clause (a) or clause (b) of Section 7.1.1, 7.1.1 and (CB) a certificate of the Borrower executed by an Authorized Officer of the Borrower shall have delivered a certificate to demonstrating that the Agents financial results reflected in form and substance satisfactory to the Agents (including a calculation of the compliance such financial statements would comply with the covenants set forth requirements of Section 7.2.4 for the Fiscal Quarter in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred Restricted Payment is to as abe made.
Appears in 1 contract
Samples: Credit Agreement (Stericycle Inc)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower No Credit Agreement Party will, nor will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to applyto, declare or pay any dividends (other than dividends payable solely in non-redeemable common stock or comparable common equity interests of Holdings or any such Subsidiary, as the case may be) or return any equity capital to, its fundsstockholders, partners, members or other equity holders or authorize or make any other distribution, payment or delivery of property or assets cash to the purchaseits stockholders, redemptionpartners, exchange, sinking fund members or other retirement ofequity holders as such, or agree redeem, retire, purchase or permit any of its Subsidiaries to purchaseotherwise acquire, redeem directly or exchangeindirectly, for a consideration, any shares of any class of Capital Stock (its capital stock or other Equity Interests, now or hereafter outstanding) outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares or other Equity Interests), or set aside any funds for any of the Borrowerforegoing purposes, warrants, options and no Credit Agreement Party will permit any of its Subsidiaries to purchase or other rights with respect to otherwise acquire for a consideration any shares of any class of Capital Stock (the capital stock or other Equity Interests of any direct or indirect parent of such Subsidiary now or hereafter outstandingoutstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock or other Equity Interests) (all of the Borrower;
(bforegoing "Dividends") the Borrower will not pay or otherwise reimburse (in cash, property or obligations) make any obligation arising under or payments in respect of the Seller Note and will not apply any outstanding Shareholder Subordinated Notes or permit any of its Subsidiaries to apply any of its fundsIntercompany Debt, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;except that:
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make (x) any payment Subsidiary of the U.S. Borrower may pay Dividends to the U.S. Borrower or prepayment any Wholly-Owned Subsidiary of principal of, the U.S. Borrower and (y) any non-Wholly-Owned Subsidiary of the U.S. Borrower may pay cash Dividends to its shareholders generally so long as the U.S. Borrower or make any payment of interest on, any Senior Note on any day other than its respective Subsidiary which owns the stated, scheduled date for such payment or prepayment set forth Equity Interest in the documents Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interests in the Subsidiary paying such Dividends and instruments memorializing such Senior Notetaking into account the relative preferences, or which would violate if any, of the subordination provisions various classes of Equity Interests of such Senior Note, Subsidiary); provided that any Dividend made pursuant to preceding clause (x) to any Wholly-Owned Subsidiary that is not a Credit Party may only be made if (A) (I) no Specified Default and no Event of Default then exists or would result therefrom and (II) such Wholly-Owned Subsidiary promptly distributes and/or transfer any Property received pursuant to such Dividend (directly or indirectly through other Wholly-Owned Subsidiaries) to a Credit Party or (ii) redeem, repurchase or defease any Senior Note; and
(dB) the Borrower will not, and will Subsidiary making such Dividend is not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments")a Credit Party; provided, however, that,
(e) , subject to Section 9.01(d)(v), any such Dividend may be made to the Bermuda Partnership notwithstanding the provisions existence of clause an Event of Default (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in other than an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as (A) no Event of Default shall have occurred and be continuing on the date such Restricted Payment is declared under Section 10.01 or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as a10
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will notNo Credit Party shall, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not no Credit Party shall permit any of its Subsidiaries to, make any deposit for Restricted Payment, other than:
(a) payments by any Subsidiary of a Borrower to such Borrower or to the direct parent of such Subsidiary (and, in the case of a Restricted Payment by a non-wholly owned Subsidiary, to a Borrower and any other Subsidiaries and to each other owner of Capital Stock of such Subsidiary based on their relative ownership interests of the foregoing purposes (the foregoing prohibited acts referred to in clause (arelevant class of Capital Stock), ;
(b) Restricted Payments by any Credit Party or any of its Subsidiaries to pay dividends with respect to its Capital Stock payable solely in additional shares of its common stock (other than Disqualified Capital Stock);
(c) above or in this clause [reserved];
(d) are herein collectively referred regularly scheduled, nonaccelerated payments with respect to as "Restricted Payments"); providedIndebtedness subordinated to the Obligations (including, howeverwithout limitation, that,seller notes and earnout obligations) to the extent expressly permitted by the applicable subordination agreement or such other subordination terms with respect thereto;
(e) notwithstanding [reserved];
(f) redemptions, repurchases, retirements or other acquisitions of Capital Stock (i) deemed to occur on the provisions exercise of options or warrants by the delivery of Capital Stock in satisfaction of the exercise price of such options or warrants or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management, or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options or vesting of performance stock units or restricted stock units; provided, that, any Restricted Payments made pursuant to this clause (af) above, the Borrower shall are not be permitted to make Restricted Payments to Holdco made in cash;
(g) [reserved];
(h) [reserved];
(i) [reserved];
(j) [reserved];
(k) to the extent necessary to enable Holdco to no Event of Default has occurred and is continuing at the time of such distribution (i) pay both before and after giving effect thereto), any Credit Party and any of its overhead expenses Subsidiaries may make distributions in an amount not sufficient to exceed $250,000 make payments (with cash or Shareholder Redemption Notes) on account of the purchase, redemption, or other acquisition or retirement of any shares of the Capital Stock of a Credit Party or Subsidiary from former employees, officers, or directors of the Credit Parties and their Subsidiaries (or any spouses, ex-spouses, beneficiaries or estates of any of the foregoing) which may be in the aggregate form of forgiveness of Indebtedness, and Administrative Borrower may make such payments (with cash or Shareholder Redemption Notes) on account of the purchase, redemption, or other acquisition or retirement of any shares of its Capital Stock, and, in each case, make payments to satisfy any tax liabilities arising in connection with such transactions; provided that the amount of such distributions and repurchases (including any such distributions or repurchases in the form of forgiveness of Indebtedness) may not exceed the sum of (x) $2,500,000 in any Fiscal Year plus (y) the amount of the cash proceeds of any permitted issuance of Qualified Capital Stock received by a Borrower for the purpose of making such payments and used solely for such purpose plus (z) key man life insurance proceeds received by the Borrowers or any of their respective Subsidiaries during such Fiscal Year, ;
(iil) pay its Restricted Payments in connection with the retention of Capital Stock in payment of withholding taxes and in connection with equity-based compensation plans that have been approved by a majority of the board of directors (iiior other governing body) so long as of the applicable Credit Party in good faith;
(Am) no Default shall have occurred and be continuing on the making of any Restricted Payment within 60 days after the date of declaration thereof, if at the date of such declaration such Restricted Payment is declared or to be made, nor would a Default result from the making have complied with another provision of such Restricted Payment, (B) after giving effect to this Section 9.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made;
(n) [reserved];
(i) the redemption, repurchase, retirement or other acquisition of any Capital Stock (“Retired Capital Stock”) of Administrative Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date exchange for, or out of the payment proceeds of, the substantially concurrent sale of, Capital Stock of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) Administrative Borrower or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate contributions to the Agents in form and substance satisfactory to the Agents equity capital of Administrative Borrower (other than any Disqualified Capital Stock) (collectively, including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(Aany such contributions, “Refunding Capital Stock”) and (e)(iii)(Bii) above, purchase, redeem, acquire or otherwise retire for value shares the declaration and payment of dividends on the Retired Capital Stock out of the proceeds of the substantially concurrent sale of Refunding Capital Stock;
(p) Restricted Payments (x) in the form of distributions of Capital Stock (other than Disqualified Capital Stock) and payments in respect of Holdco fractional shares upon the conversion or Preferred exchange of Capital Stock (including options and warrants) or (y) upon the conversion or exchange of Subordinated Debt to the Borrower held extent expressly permitted by directors, officers the applicable subordination agreement or employees of Holdco or the such other subordination terms with respect thereto;
(q) Administrative Borrower or any of the Subsidiaries may pay cash in lieu of fractional Capital Stock in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock;
(r) to the extent no Event of Default has occurred or is continuing or would result immediately after giving effect to such payment, and to the extent not prohibited by the applicable subordination provisions applicable thereto, Administrative Borrower and its SubsidiariesSubsidiaries may pay earn-outs, or options on any such shares or related stock appreciation rights seller notes, deferred purchase price obligations, holdbacks or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or obligations that were incurred pursuant to Section 9.01(x); or
(s) to the terms extent constituting Restricted Payments, the Borrowers and their respective Subsidiaries may enter into and consummate transactions permitted by Section 9.04 (other than Section 9.04(e)) and Section 9.05 (other than Section 9.05(l)). To the extent that Administrative Borrower or its Subsidiaries are permitted to make any Restricted Payments pursuant to this Section 9.06, the same may be made as a loan or advance to the recipient thereof, and in such case the amount of such stock option plan loan or any other agreement under which such shares advance so made shall reduce the amount of Capital Stock, options, related rights Restricted Payments that may be made by Administrative Borrower or similar securities were issued (collectively referred to as aits Subsidiaries in respect thereof.
Appears in 1 contract
Restricted Payments, etc. On and at all times or after the date hereofAmendment Effective Time:
(a) the Borrower will not declare, pay pay, or make any dividend, dividend or distribution or exchange (in cash, property property, or obligations) on or in respect of any shares of any class of Capital Stock capital stock (now or hereafter outstanding) of the Borrower or on any warrants, options options, or other rights with respect to any shares of any class of Capital Stock capital stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock stock, or warrants to purchase its common stock, or options to purchase its stock granted to management or splits directors of the Borrower or any Subsidiary, or splitups or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries Subsidiary to apply, any of its funds, property property, or assets to the purchase, redemption, exchangesinking fund, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock capital stock (now or hereafter outstanding) of the Borrower, Borrower or of any warrants, options or other rights with respect to any acquire shares of any class of Capital Stock (now or hereafter outstanding) capital stock of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cashnot, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any Subsidiary to, prepay or repay any principal of, or make any payment of its Subsidiaries to apply interest on, or redeem, purchase or defease, the Senior Subordinated Notes or any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller NoteSubordinated Debt;
(c) the Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, prepay any principal of any Debt (other than (i) make any payment or prepayment prepayments of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents Credit Extensions and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; andprepayments of other Debt (other than Subordinated Debt) existing as of the Amendment Effective Time in a principal amount under this CLAUSE (II) not to exceed $3,000,000);
(d) the Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, make any deposit for any of the foregoing purposes purposes; PROVIDED that, if no Default (or, in the foregoing prohibited acts referred to case of CLAUSES (A) and (B) below, no Event of Default and no Default described in clause CLAUSES (a), (bH) or (cI) above of SECTION 7.01) shall then exist or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,arise therefrom:
(eA) notwithstanding the Borrower may, subject to the subordination provisions of clause the Senior Subordinated Note Indenture, pay interest when due on the Senior Subordinated Notes and make consent payments to some or all of the holders of the Senior Subordinated Notes at the Amendment Effective Time in an aggregate amount not exceeding $4,000,000;
(aB) abovethe Borrower may, subject to the subordination provisions applicable to any of its other Subordinated Debt, pay interest when due under the relevant Subordinated Debt Document entered into in accordance with SECTION 6.02.15;
(C) the Borrower may declare and pay dividends on its capital stock, or purchase or redeem (or permit any Subsidiary to purchase) any Senior Subordinated Note, so long as (i) the Borrower shall have delivered to the Administrative Agent and the Banks a certificate to the effect that, and containing projections in reasonable detail which demonstrate that, the Borrower shall will be permitted in compliance with all financial covenants set forth in this Agreement during the 12-month period following such transaction; (ii) after giving effect to make Restricted Payments to Holdco to such transaction, the extent necessary to enable Holdco to Unused Total Commitment Amount will be $20,000,000 or more; and (iiii) pay the aggregate amount of all dividends after March 1, 1993 (excluding the Effective Time Dividend) will not, at the time any such dividend is paid, exceed 50% of Consolidated Net Income after March 1, 1993;
(D) the Borrower may purchase capital stock of the Borrower, and options or warrants for such capital stock, owned by management of the Borrower or its overhead expenses Subsidiaries whose employment with the Borrower or such Subsidiary has terminated (including by reason of death, disability or retirement), in an aggregate amount not to exceed $250,000 2,000,000 in the aggregate each Fiscal Year (PROVIDED that any unused amounts in any Fiscal Year, up to a maximum amount of $2,000,000, may be carried over and used in succeeding Fiscal Years);
(ii) pay its taxes and (iiiE) so long as (A) no Default shall have occurred and be continuing on there does not then exist a public trading market in the date Borrower's capital stock, the Borrower may acquire capital stock of the Borrower owned by an officer or executive, managerial or professional employee of, or consultant to, the Borrower or any Subsidiary in order to satisfy the Borrower's obligations under a Non-Cash Compensation Plan; PROVIDED that the Borrower may only purchase such Restricted Payment is declared or to be made, nor would a Default result from capital stock if the making of such Restricted Payment, (B) after giving effect Borrower has previously delivered to the making of such Restricted Payment Administrative Agent and the Banks a certificate to the effect that, and containing projections in reasonable detail which demonstrate that, the Borrower shall will be in pro forma compliance with the all financial covenants set forth in Section 7.2.4 for this Agreement during the most recent full 12-month period following such purchase; PROVIDED, FURTHER, that no such certificate shall be required in connection with acquisitions of capital stock under Non- Cash Compensation Plans in an aggregate amount in any Fiscal Quarter immediately preceding Year of $1,000,000 or less;
(F) the date of Borrower may purchase from the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (bapplicable executive officer(s) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any Subsidiary capital stock of its Subsidiaries, the Borrower for a total consideration not in excess of $1,000,000;
(G) the Borrower may repay or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estatesprepay Debt incurred after the Amendment Effective Time pursuant to SECTION 6.02.02(D), in all cases only upon death(G), disability(H), retirement, termination (I) or (J); and
(H) the Borrower may declare and pay the Effective Time Dividend so long as the required percentage of employment or pursuant to the terms holders of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as athe Senior Subordinated Notes have consented thereto.
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not, and will not permit any of its Subsidiaries, if any, to, declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than (i) dividends or distributions payable in its common stock or warrants to purchase its common stock or and (ii) splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;; and
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, to (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Subordinated Note except for scheduled payments made on any day other than the stated, scheduled date for such payment or prepayment therefor set forth in the documents and instruments memorializing such Senior Subordinated Note, or which would violate the subordination provisions of such Senior Subordinated Note, or (ii) redeem, repurchase purchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes Subordinated Note (the foregoing prohibited acts referred to in clause clauses (a), ) and (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted PaymentsRESTRICTED PAYMENTS"); provided, however, that,
(ec) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Intermediate Holdco to the extent necessary to enable Intermediate Holdco to or Holdco (i) to pay its overhead expenses advisory fees and retainer (in an amount not to exceed $250,000 100,000 in the aggregate in any Fiscal Year) pursuant to the DLJSC Agreement as in effect on the Closing Date and expenses, (ii) pay its to make payments in respect of taxes and (iii) so long as (A) no Default shall shell have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma PRO FORMA compliance with the covenants set forth in Section SECTION 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section SECTION 7.1.1, and (Cc) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the Borrower's compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(Ac)(iii)(A) and (e)(iii)(Bc)(iii)(A) above, to purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or Holdco, Intermediate Holdco, the Borrower or any of its Subsidiaries, if any, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of or beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as a "REDEMPTION") (or to pay principal of or interest on notes issued by Holdco as consideration for any Redemption) in an aggregate amount, in the case of this clause (c)(iii), not to exceed $5,000,000; and
(d) notwithstanding the provisions of clauses (a) and (b) above, the Borrower and its Subsidiaries shall be permitted to make the Restricted Payments included in the Transaction and to make payments to Holdco in an amount not to exceed $1,000,000 to finance the purchase by certain current equity owners and employees of WGL of Capital Stock of Holdco acquired by the DLJMB Entities in the Acquisition.
Appears in 1 contract
Samples: Credit Agreement (Wilson Greatbatch Technologies Inc)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower Each Credit Party will not, and will not permit any of its Subsidiaries toSubsidiaries, (i) to make any payment or prepayment of principal ofRestricted Payment, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause Restricted Payment, other than:
(a)) Restricted Payments (i) for customary director indemnification payments to the directors (or equivalent persons) of such Person, (ii) for reasonable and customary fees to outside directors (or equivalent persons) of such Person and for customary director (or equivalent persons) and officers insurance premiums owed by such Person, (iii) for financial, other reporting and similar customary administrative or overhead costs and expenses of such Person, (iv) for obligations incurred in ordinary course of business to the extent relating to activities permitted under this Agreement and (v) for Tax Distributions;
(b) payments by any Subsidiary of any Credit Party to its direct parent (other than the Borrower) so long as such parent is (i) a direct or indirect Wholly-Owned Subsidiary of any Credit Party, (ii) the Borrower or (iii) a direct parent (other than the Borrower or a direct or indirect parent of the Borrower) of a non-Wholly-Owned Subsidiary, in which case such payment shall be made pro rata to such parent based on its relative ownership interests in the class of equity receiving such Restricted Payment;
(c) above Restricted Payments by any Credit Party or any of its Subsidiaries to pay dividends with respect to its Capital Stock payable solely in additional shares of its Capital Stock (other than Disqualified Capital Stock);
(d) Restricted Payments to repurchase, redeem or otherwise acquire or retire for value any Capital Stock of the Borrower or its Subsidiaries held by any current or former employee, director, consultant or officer (or their transferees, spouses, ex-spouses, estates or beneficiaries under their estates) of any Credit Party or Subsidiary of any Credit Party pursuant to any employee equity subscription agreement, stock option agreement or stock ownership arrangement, including upon the death, disability, retirement, severance or termination of employment or service of such Persons to the extent (i) not exceeding $1,000,000 in the aggregate during any fiscal year (plus (x) any amounts funded with issuances of Capital Stock of the Borrower (or any direct or indirect parent entity thereof) or proceeds in respect thereof used to repurchase such Capital Stock and (y) amounts solely in the form of forgiveness of Indebtedness of such Persons owing to the Borrower or any Credit Party on account of redemptions or repurchases of the Capital Stock of the Borrower held by such Persons) and (ii) both before and after giving effect to any such payment, no Specified Event of Default or Financial Covenant or Financial Reporting Event of Default exists or would immediately thereafter occur as a result thereof; provided that to the extent any amounts remain unused under subclause (i) of this clause (d) are herein collectively referred in a given fiscal year of the Borrower may be carried forward and made in the immediately succeeding fiscal year of the Borrower without regard to as "Restricted Payments"); provided, however, that,any caps set forth herein;
(e) notwithstanding the provisions of clause (ai) above, the Borrower shall be permitted to make Restricted Payments in connection with the Profits Interest Agreement and (ii) Restricted Payments in an aggregate amount of up to Holdco $1,000,000 per fiscal year to pay advisory fees pursuant to the XXXX Holdings Ltd. Advisory Services Agreement plus any amounts accrued and not paid for periods prior to the Closing Date;
(f) payments of Indebtedness of the type described in Section 10.01(l) to the extent necessary to enable Holdco to made in conformity with the terms of Section 10.01(l);
(ig) pay its overhead expenses Restricted Payments made using either, or a combination of, the proceeds of the Class F Equity Issuance or the Initial Term Loan Facility in an aggregate principal amount not to exceed $250,000 20,000,000.
(h) Restricted Payments (x) in connection with the redemption of the Class F Member Units outstanding as of the Closing Date (pursuant to and as defined in the aggregate in any Fiscal Year, (iiBorrower’s Operating Agreement) pay its taxes and (iiiy) so long in connection with the redemption of the Senior Preferred Member Units and/or the Class E Member Units (in each case, pursuant to and as defined in the Borrower’s Operating Agreement); provided, that, solely in the case of subclause (Ay) under this clause (h), the Total Leverage Ratio on a Pro Forma Basis after giving effect to all such Restricted Payments under such subclause (y), shall not exceed an amount equal to 1.50x less than the Closing Date Leverage Ratio;
(i) to the extent constituting Restricted Payments, payments of Indebtedness permitted pursuant to Section 10.13;
(j) other Restricted Payments in an aggregate principal amount not to exceed $1,000,000 in the aggregate; provided that no Event of Default shall have occurred and be continuing on or would immediately result therefrom; provided further that any unused portion of this clause (j) may be reallocated to Investments in Section 10.05(v); and
(k) Restricted Payments utilizing the date such Restricted Payment is declared Available Amounts Basket; provided that (i) no Event of Default shall have occurred and be continuing or to be madewould result therefrom, nor would a Default result from and (ii) solely for purposes of utilizing availability under clause (a)(i) of the making of such Restricted PaymentAvailable Amounts Basket, (B) after giving effect to the making of any such Restricted Payment on a Pro Forma Basis, the Borrower Total Leverage Ratio shall be in pro forma compliance with not exceed an amount equal to 1.00x less than the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aClosing Date Leverage Ratio.
Appears in 1 contract
Samples: Credit Agreement (ARKO Corp.)
Restricted Payments, etc. On and at all times after None of the date hereofGroup Companies will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) of such Person), except that:
(ai) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Parent Borrower may make Restricted Payments to the Parent Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Parent Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligationsii) any obligation arising under or in respect non-Wholly-Owned Subsidiary of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Parent Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to may make Restricted Payments to Holdco the Parent Borrower or to any Wholly-Owned Subsidiary of the extent necessary Parent Borrower or ratably to enable Holdco to (i) pay all holders of its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and outstanding Equity Interests;
(iii) so long as the Parent Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) from (A) no Default shall have occurred officers, employees and be continuing on directors of any Group Company (or their estates, spouses or former spouses) upon the date death, permanent disability, retirement or termination of employment of any such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire Person or otherwise retire for value shares of Capital Stock of Holdco in accordance with any stock option plan or Preferred Stock of any employee stock ownership plan maintained by the Borrower held by directors, officers or employees of Holdco or the Parent Borrower or any of its Subsidiaries, or options on any (B) other holders of Equity Interests or Equity Equivalents in the Parent Borrower, so long as the purpose of such shares or related purchase is to acquire common stock appreciation rights or similar securities owned by such directorsfor reissuance to new officers, officers or employees and directors (or their estates estates) of beneficiaries under their estates)any Group Company, to the extent so reissued within 12 months of any such purchase; PROVIDED that in all such cases only upon death(A) no Default or Event of Default is then in existence or would otherwise arise therefrom, disability(B) the aggregate amount of all cash paid in respect of all such shares so redeemed or repurchased does not exceed US$1,000,000 in any fiscal year of the Parent Borrower or US$7,000,000 in the aggregate from and after the Closing Date, retirementand PROVIDED FURTHER that the Parent Borrower may purchase, termination redeem or otherwise acquire Equity Interests and Equity Equivalents of employment or the Parent Borrower pursuant to this CLAUSE (iii) without regard to the terms restrictions set forth in the first proviso above for consideration consisting of the proceeds of key man life insurance obtained for the purposes described in this CLAUSE (iii); and
(iv) so long as no Default or Event of Default is then in existence or would arise therefrom, the Parent Borrower may make regular quarterly dividend payments on and open market repurchases of Equity Interests of the Parent Borrower in each case in the ordinary course of business and consistent with past practices on the Parent Borrower's outstanding Capital Stock; PROVIDED that the aggregate amount of all such payments and repurchases does not exceed US$35,000,000 in the aggregate in any fiscal year; and, PROVIDED, FURTHER, that for any of the fiscal quarters of the Parent Borrower ending on August 31, 2004 and November 30, 2004, the per share amount of all such payments and repurchases shall not exceed C$0.03; and
(v) so long as no Default or Event of Default is then in existence or would arise therefrom, the Group Companies may make Restricted Payments not otherwise permitted by CLAUSES (i) through (iv) of this SECTION 7.07; PROVIDED that the aggregate amount of all Restricted Payments made on or after the Closing Date pursuant to this CLAUSE (v) does not exceed in the aggregate (A) if the Leverage Ratio as of the last day of the fiscal quarter of the Parent Borrower ending on or most recently preceding the making of any such Restricted Payment is less than 3.25 to 1.0, US$40,000,000 and (B) otherwise, US$20,000,000 (it being understood and agreed that any Restricted Payment made in compliance with clause (A) of this proviso shall not cause a Default or Event of Default solely by reason of a change in the Leverage Ratio subsequent to the making of such stock option plan or any other agreement under Restricted Payment, which such shares change results in the application of Capital Stock, options, related rights or similar securities were issued clause (collectively referred to as aB) of this proviso).
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Each Borrower will not, and will not permit any of its Subsidiaries to, make any Restricted Payment, or make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause Restricted Payment, other than:
(a)) Restricted Payments (i) for customary director indemnification payments to the directors (or equivalent persons) of such Person, (ii) for reasonable and customary fees to outside directors (or equivalent persons) of such Person and for customary director (or equivalent persons) and officers insurance premiums owed by such Person, (iii) for financial, other reporting and similar customary administrative or overhead costs and expenses of such Person, (iv) for obligations incurred in the Ordinary Course of Business to the extent relating to activities permitted under this Agreement and (v) for Tax Distributions;
(b) payments by any Subsidiary of any Borrower to its direct parent (other than GPM) so long as such parent is (i) a direct or indirect wholly-owned Subsidiary of any Borrower, (ii) GPM or (iii) a direct parent (other than GPM or a direct or indirect parent of GPM) of a non-wholly-owned Subsidiary, in which case such payment shall be made pro rata to such parent based on its relative ownership interests in the class of equity receiving such Restricted Payment;
(c) above Restricted Payments by any Borrower or any of its Subsidiaries to pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Equity Interests);
(d) Restricted Payments to repurchase, redeem or otherwise acquire or retire for value any Equity Interests of the Borrowers or their Subsidiaries held by any current or former employee, director, consultant or officer (or their transferees, spouses, ex-spouses, estates or beneficiaries under their estates) of any Borrower or Subsidiary of any Borrower pursuant to any employee equity subscription agreement, stock option agreement or stock ownership arrangement, including upon the death, disability, retirement, severance or termination of employment or service of such Persons to the extent (i) not exceeding $1,000,000 in the aggregate during any fiscal year (plus (x) any amounts funded with issuances of Equity Interests of the Borrowers (or any direct or indirect parent entity thereof) or proceeds in respect thereof used to repurchase such Equity Interests and (y) amounts solely in the form of forgiveness of Indebtedness of such Persons owing to the Borrowers on account of redemptions or repurchases of the Equity Interests of the Borrowers held by such Persons) and (ii) both before and after giving effect to any such payment, no Specified Event of Default or Financial Covenant or Financial Reporting Event of Default exists or would immediately thereafter occur as a result thereof; provided that to the extent any amounts remain unused under subclause (i) of this clause (d) are herein collectively referred in a given fiscal year of the Borrowers may be carried forward and made in the immediately succeeding fiscal year of the Borrowers without regard to as "Restricted Payments"); provided, however, that,any caps set forth herein;
(ei) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments in connection with the Profits Interest Agreement and (ii) Restricted Payments in an aggregate amount of up to Holdco $1,000,000 per fiscal year to pay advisory fees pursuant to the Axxx Advisory Agreement plus any amounts accrued and not paid for periods prior to the Closing Date;
(f) payments of Indebtedness of the type described in Section 7.8(l) hereof to the extent necessary to enable Holdco to made in conformity with the terms of Section 7.8(l);
(ig) pay its overhead expenses Restricted Payments made using the proceeds of the Class F Equity Issuance in an aggregate principal amount not to exceed $250,000 20,000,000;
(h) Restricted Payments (x) in connection with the redemption of the Class F units of GPM pursuant to the GPMI Operating Agreement in an aggregate in principal amount not to exceed $20,000,00027,300,000 plus any Fiscal Year, (ii) pay its taxes and (iii) amounts accreted after the Closing Date so long as prior to and after giving effect to any such redemption, Borrowers have Undrawn Availability and Average Undrawn Availability of not less than twenty percent (20%) of the Maximum Revolving Advance Amount and (y) in connection with the redemption of the Senior Preferred Member Units and/or the Class E Member Units (in each case, pursuant to and as defined in the GPMI Operating Agreement) in an aggregate principal amount not to exceed $62,000,000 plus any amounts accreted after the Closing Date; provided, that (A) the Total Leverage Ratio on a Pro Forma Basis after giving effect to all such Restricted Payments under such subclause (y), shall not exceed an amount equal to 1.50x less than the Closing Date Leverage Ratio and (B) prior to and after giving effect to any such redemption, Borrowers have Undrawn Availability and Average Undrawn Availability of not less than twenty percent (20%) of the Maximum Revolving Advance Amount;
(i) to the extent constituting Restricted Payments, payments of Indebtedness permitted pursuant to Section 7.17 hereof;
(j) other Restricted Payments in an aggregate principal amount not to exceed $1,000,000 in the aggregate; provided that no Event of Default shall have occurred and be continuing on or would immediately result therefrom; provided further that any unused portion of this clause (j) may be reallocated to Investments in Section 7.4(v) hereof;
(k) Restricted Payments utilizing the date Available Amounts Basket; provided that (i) no Event of Default shall have occurred and be continuing or would result therefrom, and (ii) solely for purposes of utilizing availability under clause (a)(i) of the Available Amounts Basket, after giving effect to any such Restricted Payment is declared on a Pro Forma Basis, the Total Leverage Ratio shall not exceed an amount equal to 1.00x less than the Closing Date Leverage Ratio; and
(l) Restricted Payments by GPM to its members for the sole purpose of simultaneously servicing regularly scheduled payments of principal and interest in respect of the 2021 Note Obligations so long as (i) no Event of Default shall have occurred and be continuing or would result therefrom and (ii) prior to be made, nor would a Default result from the making of and after giving effect to any such Restricted Payment, Borrowers have Undrawn Availability and Average Undrawn Availability of not less than twenty percent (B20%) of the Maximum Revolving Advance Amount.; and
(m) Restricted Payments by GPM consisting of an approximate $7,455,352 distribution to its members so long as such distribution is netted against prior tax distributions which are treated as prepayments against future distribution, resulting in an aggregate net cash distribution to its members not to exceed $1,000,000; provided, that, to the extent the amount of outstanding Revolving Advances is greater than $0 immediately before or immediately after giving pro forma effect to the making such distribution, no Event of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower Default shall have delivered a certificate to the Agents in form occurred and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire be continuing or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as awould result therefrom.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (ARKO Corp.)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower No Credit Agreement Party will, nor will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to applyto, declare or pay any dividends (other than dividends payable solely in non-redeemable common stock or comparable common equity interests of Holdings or any such Subsidiary, as the case may be) or return any equity capital to, its fundsstockholders, partners, members or other equity holders or authorize or make any other distribution, payment or delivery of property or assets cash to the purchaseits stockholders, redemptionpartners, exchange, sinking fund members or other retirement ofequity holders as such, or agree redeem, retire, purchase or permit any of its Subsidiaries to purchaseotherwise acquire, redeem directly or exchangeindirectly, for a consideration, any shares of any class of Capital Stock (its capital stock or other Equity Interests, now or hereafter outstanding) outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares or other Equity Interests), or set aside any funds for any of the Borrowerforegoing purposes, warrants, options and no Credit Agreement Party will permit any of its Subsidiaries to purchase or other rights with respect to otherwise acquire for a consideration any shares of any class of Capital Stock (the capital stock or other Equity Interests of any direct or indirect parent of such Subsidiary now or hereafter outstandingoutstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock or other Equity Interests) (all of the Borrower;
(bforegoing “Dividends”) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) make any obligation arising under or payments in respect of the Seller Note and will not apply any outstanding Shareholder Subordinated Notes or permit any of its Subsidiaries to apply any of its fundsIntercompany Debt, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;except that:
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make (x) any payment Subsidiary of the U.S. Borrower may pay Dividends to the U.S. Borrower or prepayment any Wholly-Owned Subsidiary of principal of, the U.S. Borrower and (y) any non-Wholly-Owned Subsidiary of the U.S. Borrower may pay cash Dividends to its shareholders generally so long as the U.S. Borrower or make any payment of interest on, any Senior Note on any day other than its respective Subsidiary which owns the stated, scheduled date for such payment or prepayment set forth Equity Interest in the documents Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interests in the Subsidiary paying such Dividends and instruments memorializing such Senior Notetaking into account the relative preferences, or which would violate if any, of the subordination provisions various classes of Equity Interests of such Senior Note, Subsidiary); provided that any Dividend made pursuant to preceding clause (x) to any Wholly-Owned Subsidiary that is not a Credit Party may only be made if (A) (I) no Specified Default and no Event of Default then exists or would result therefrom and (II) such Wholly-Owned Subsidiary promptly distributes and/or transfer any Property received pursuant to such Dividend (directly or indirectly through other Wholly-Owned Subsidiaries) to a Credit Party or (ii) redeem, repurchase or defease any Senior Note; and
(dB) the Borrower will not, and will Subsidiary making such Dividend is not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments")a Credit Party; provided, however, that,
(e) , subject to Section 9.01(d)(v), any such Dividend may be made to the Bermuda Partnership notwithstanding the provisions existence of clause an Event of Default (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in other than an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iiiEvent of Default under Section 10.01 or 10.05) so long as (a) the Bermuda Partnership complies with clause (II) of the preceding proviso and (b) the Bermuda Partnership Partners are (after giving effect to the receipt of any Dividend from Bermuda Partnership) in compliance with the requirements of Section 9.01(d);
(ii) Holdings may redeem or purchase shares of Holdings Common Stock or options to purchase Holdings Common Stock, as the case may be, held by former officers or employees of Holdings or any of its Subsidiaries following the death, disability, retirement or termination of employment of such officers or employees, provided that (w) the only consideration paid by Holdings in respect of such redemptions and/or purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, shall not exceed $2,000,000 in any Fiscal Year of Holdings, and (z) at the time of any redemption or purchase pursuant to this Section 9.06(ii), no Specified Default or Event of Default shall then exist or result therefrom;
(A) the U.S. Borrower may pay cash Dividends to Intermediate Holdco, so long as (x) no Specified Default or Event of Default then exists or would result therefrom and (y) the cash proceeds thereof are promptly used by Intermediate Holdco to pay the cash Dividend described in succeeding clause (B) and (B) Intermediate Holdco may pay cash Dividends to Holdings, so long as (x) no Specified Default or Event of Default then exists or would result therefrom and (y) the cash proceeds thereof are promptly used by Holdings for the purposes described in Section 9.06(ii);
(iv) (A) the U.S. Borrower may pay cash Dividends to Intermediate Holdco, so long as the proceeds thereof are promptly used by Intermediate Holdco to pay its operating expenses in the ordinary course of business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses, (B) the U.S. Borrower may pay cash Dividends to Intermediate Holdco, so long as Intermediate Holdco promptly contributes such proceeds to Corporate Holdco and the proceeds of such contribution are promptly used by Corporate Holdco to pay its operating expenses in the ordinary course of business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses and (C) the U.S. Borrower may pay cash Dividends to Intermediate Holdco, which, in turn, may pay cash Dividends to Holdings, so long as the proceeds thereof are promptly used by Holdings to pay operating expenses in the ordinary course of its business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses;
(v) the U.S. Borrower may pay cash Dividends to Intermediate Holdco, and Intermediate Holdco may in turn pay cash Dividends to Holdings, in the amounts and at the times of any payment by Holdings in respect of its taxes (or taxes of its consolidated group), provided that (x) the amount of cash Dividends paid pursuant to this clause (v) to enable Holdings to pay taxes at any time shall not exceed the amount of such taxes owing by Holdings at such time and (y) any refunds received by Holdings attributable to the U.S. Borrower or any of its Subsidiaries shall be promptly returned by Holdings to Intermediate Holdco, and, in turn, by Intermediate Holdco to the U.S. Borrower, provided,further, that (A) in no event shall the amount of Dividends paid by the U.S. Borrower and its Subsidiaries pursuant to this Section 9.06(v) in respect of any taxable year for which the U.S. Borrower and any of its Subsidiaries are included in a consolidated federal income tax return, or a consolidated, combined or unitary state or local tax return with any Person other than the U.S. Borrower and its Subsidiaries (such other Person or Persons included in such returns, together with the U.S. Borrower and its Subsidiaries, the “Affiliated Group”) exceed, in the aggregate, the lesser of (I) the amount of such federal income tax or state or local tax, as the case may be (the “Relevant Separate Tax Liability”), that the U.S. Borrower and its Subsidiaries would have been obligated to pay if the U.S. Borrower and its Subsidiaries had filed a separate consolidated federal income tax return or a separate consolidated, combined or unitary state or local tax return, as the case may be, for such year and all prior taxable years (with the U.S. Borrower as the common parent of such affiliated group) and (II) the product of (a) the federal income or state or local tax liability, as the case may be, of the Affiliated Group for such year and (b) a fraction, (x) the numerator of which is an amount equal to the Relevant Separate Tax Liability of the U.S. Borrower and its Subsidiaries for such year and (y) the denominator of which is the aggregate of the total separate federal income, state or local tax liability, as the case may be, that each member of the Affiliated Group (treating the U.S. Borrower and its Subsidiaries as a single member and all other members of the Affiliated Group as one separate member) would have incurred for such year if such members had filed separate federal income tax returns or separate consolidated, combined or unitary state or local tax returns, as the case may be, for such year and all prior taxable years and (B) each Unrestricted Wellbeing Joint Venture shall be required to contribute to Holdings (and shall concurrently or prior to any payment of any Dividend by the U.S. Borrower pursuant to this Section 9.06(v) have contributed to Holdings) its allocable share (as reasonably determined by Holdings in good faith) of all tax liabilities of Holdings and its consolidated Subsidiaries;
(vi) Holdings and its Subsidiaries may make payments with respect to Intercompany Debt, so long as the respective payment is permitted to be made in accordance with the terms of the Intercompany Subordination Agreement; provided that, in no event shall the U.S. Borrower be permitted to repay any Intercompany Debt incurred by it from Intermediate Holdco pursuant to Section 9.05(xxii), unless the conditions set forth in subclauses (i), (ii), (iii) and (iv) of Section 9.06(ix) shall have been satisfied at such time (for such purposes, treating each reference to the making of a Dividend in said subclauses as if it were a reference to the repayment of such Intercompany Debt);
(vii) Holdings may make payments of interest and principal on the Shareholder Subordinated Notes in accordance with the terms thereof, so long as the sum of (A) the aggregate amount paid by Holdings in cash in respect of all redemptions and/or purchases of Holdings Common Stock pursuant to Section 9.06(ii) plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, does not exceed $2,000,000 in any Fiscal Year of Holdings;
(viii) Holdings may pay regularly scheduled Dividends on Qualified Preferred Stock issued by it pursuant to the terms thereof solely through the issuance of additional shares of such Qualified Preferred Stock rather than in cash;
(ix) the U.S. Borrower may pay cash Dividends to Intermediate Holdco, and Intermediate Holdco may pay cash Dividends to Holdings, at the times and for the purposes described below, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) the aggregate amount of such cash Dividends shall have not exceed the aggregate amount of cash common equity contributions received by the U.S. Borrower from Intermediate Holdco (including not more than $28,500,000 received prior to the Restatement Effective Date), to and including the date of such cash Dividend, pursuant to clause (v) of Section 9.05(viii), in each case only to the extent such cash common equity contributions were funded by Intermediate Holdco with proceeds from the incurrence of any Wellbeing Project Financing, (iii) each such Dividend is permitted pursuant to the terms of the Existing Senior Notes Documents and, on and after the execution and delivery thereof, the Permitted Senior Notes Documents and the Permitted Refinancing Senior Notes Documents, (iv) no such Dividend by the U.S. Borrower to Intermediate Holdco shall be paid, unless the proceeds thereof are promptly (and in any event within 5 Business Days of the payment of such Dividend) (A) Dividended by Intermediate Holdco to Holdings for use within the time periods required by, and for the purposes described in, immediately succeeding clause (v) and/or (B) on-loaned by Intermediate Holdco to Holdings for use within the time periods required by, and for the purposes described in, sub-clause (v) of preceding Section 9.05(xxi) and (v) the proceeds of each such Dividend received by Holdings shall be utilized by Holdings promptly (and, in any event, within 30 days of the payment of such Dividend) to make an Investment in one or more Unrestricted Wellbeing Joint Ventures pursuant to Section 9.05(xx) for the purposes of financing the Wellbeing Project and/or the operations of the Unrestricted Wellbeing Joint Ventures;
(x) the Refinancing may be consummated in accordance with the requirements of this Agreement;
(xi) so long as no Default and no Event of Default then exists or would result therefrom, any Existing Senior Notes, any Permitted Senior Notes and any Permitted Refinancing Senior Notes may be refinanced with any Permitted Refinancing Senior Notes in accordance with the requirements of this Agreement;
(xii) so long as no Specified Default and no Event of Default then exists or would result therefrom, any Scheduled Existing Indebtedness, any Permitted Acquired Debt and any Permitted Refinancing Indebtedness incurred to refinance same may be refinanced with Permitted Refinancing Indebtedness in accordance with the requirements of this Agreement and, so long as no Event of Default has occurred and is continuing or would result therefrom, the Existing Senior Notes and any Permitted Refinancing Senior Notes may be continuing exchanged for Equity Interests of Holdings permitted by Section 9.09(a);
(xiii) in addition to the actions permitted above, the U.S. Borrower and its Subsidiaries may make Investments (and, without duplication, may repurchase or redeem (so long as any repurchased Indebtedness is promptly cancelled) any Indebtedness otherwise described in Section 9.08(a)(i)) so long as (I) no Default or Event of Default then exists or would result therefrom, (II) the aggregate amount of cash expended pursuant to this Section 9.06(xiii) to effect such Investments after the Restatement Effective Date does not exceed the sum of (x) $50,000,000 and (y) the aggregate amount of Retained Excess Cash Flow Amount at the time such Investment is made and (III) to the extent any such Investment (or any part thereof) is made in reliance on preceding clause (II)(y), calculations are made by the U.S. Borrower of compliance with Section 9.04(a) (regardless of whether any Indebtedness is then being incurred pursuant to said Section 9.04(a)) for the Calculation Period most recently ended prior to the date of the respective repurchase or redemption (determined on a Pro Forma Basis after giving effect to such Investment and the incurrence of any Indebtedness to finance same), as set forth in a certificate by an Authorized Officer of the U.S. Borrower furnished to the Administrative Agent on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted PaymentInvestment, and such calculations shall show that, after giving effect to the respective Investment (and any other contemporaneous Investments) and any Indebtedness being incurred in connection therewith, the U.S. Borrower would be permitted to incur at least $1 of additional Indebtedness pursuant to Section 9.04(a) at such time; provided that, to the extent that such Investments constitute redemptions and/or repurchases of Existing Senior Notes, Permitted Senior Notes and/or Permitted Refinancing Senior Notes from time to time (whether redeemed in accordance with the terms of the indenture therefor and/or repurchased on the open market), all such Existing Senior Notes, Permitted Senior Notes or Permitted Refinancing Senior Notes, as the case may be, so repurchased or redeemed are promptly cancelled by the U.S. Borrower; and
(xiv) in addition to the actions permitted above, the U.S. Borrower and its Subsidiaries may make Investments in (and, without duplication, may repurchase or redeem) any Existing 2009 Senior Notes or Existing 2010 Senior Notes so long as (I) no Default or Event of Default then exists or would result therefrom, (BII) the aggregate amount of cash expended pursuant to this Section 9.06(xiv) to effect such Investments after the Restatement Effective Date does not exceed $50,000,000, (III) after giving effect to such Investments, redemptions and repurchases, the making of such Restricted Payment the U.S. Borrower shall (A) would be in compliance on a pro forma compliance basis with Section 9.13 as of the covenants set forth in Section 7.2.4 for last day of the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment recently completed Test Period for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, statements are available and (CB) an Authorized Officer has not less than $70,000,000 of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) unutilized ABL Commitments and (e)(iii)(BIV) above, purchase, redeem, acquire all such Existing 2009 Senior Notes or otherwise retire for value shares of Capital Stock of Holdco Existing 2010 Senior Notes so repurchased or Preferred Stock of redeemed are promptly cancelled by the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aU.S. Borrower.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will notNo Credit Party shall, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not no Credit Party shall permit any of its Subsidiaries to, make any Restricted Payment, or make any deposit for any Restricted Payment, other than:
(a) payments by any Subsidiary of a Borrower to such Borrower or its direct parent (and, in the case of a Restricted Payment by a non-wholly owned Subsidiary, to a Borrower and any other Subsidiaries and to each other owner of Capital Stock of such Subsidiary based on their relative ownership interests of the foregoing purposes (the foregoing prohibited acts referred to in clause (arelevant class of Capital Stock), ;
(b) Restricted Payments by any Credit Party or any of its Subsidiaries to pay dividends with respect to its Capital Stock payable solely in additional shares of its common stock (other than Disqualified Capital Stock);
(c) above Restricted Payments by any Credit Party or in this clause any of its Subsidiaries to Parent to enable Parent to pay any applicable income or franchise Taxes then due and payable, to the extent such Taxes are attributable to the activities or income of the Borrowers and its Subsidiaries;
(d) are herein collectively referred regularly scheduled, nonaccelerated payments with respect to as "Restricted Payments"); providedIndebtedness subordinated to the Obligations (including, howeverwithout limitation, that,seller notes and earnout obligations) to the extent expressly permitted by the applicable subordination agreement or such other subordination terms with respect thereto;
(e) notwithstanding the provisions 2024 Convertible Notes Repurchase on the maturity date (as set forth in the 2024 Convertible Notes);
(f) redemptions, repurchases, retirements or other acquisitions of Capital Stock (i) deemed to occur on the exercise of options by the delivery of Capital Stock in satisfaction of the exercise price of such options or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management, or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options or vesting of performance stock units or restricted stock units; provided, that, any Restricted Payments made pursuant to this clause (af) aboveare not be made in cash;
(g) [reserved];
(h) all mandatory or scheduled payments in respect of the Convertible Senior Notes, including conversions into (x) Qualified Capital Stock of Parent or (y) cash, in each case, in accordance with the Borrower shall be permitted to make terms of the applicable class of Convertible Notes; provided that, Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered consummate conversions pursuant to clause (ay) or clause (b) of Section 7.1.1, and (C) an Authorized Officer above shall not exceed $17,500,000 in the aggregate during the term of the Borrower Agreement and shall have delivered a certificate be permitted solely to the Agents in form extent no Event of Default has occurred and substance satisfactory to is continuing at the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms time of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aconversion;
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the The Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a)Restricted Payment, (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, except that,:
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) (x) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower (including by way of conversion of intercompany payables) and (y) any Non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its overhead expenses shareholders generally, so long as the Borrower or its respective Subsidiary which owns the equity interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the equity interests in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of equity interests of such Subsidiary);
(ii) the Borrower may redeem or repurchase shares of Borrower Common Stock (or options, warrants and/or appreciation rights in respect thereof) from shareholders, officers, employees, consultants and directors (or their estates) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise in accordance with any shareholder agreement, stock option plan or any employee stock ownership plan, provided that (x) no Default or Event of Default is then in existence or would arise therefrom and (y) the aggregate amount of all cash paid in respect of all such shares, options, warrants and rights so redeemed or repurchased in any calendar year, does not exceed $2,000,000;
(iii) the Borrower may declare and pay Dividends to the holders of Borrower Common Stock (including by way of the repurchase of outstanding shares of Borrower Common Stock) in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, amount of Cumulative Distributable Cash at such time (ii) pay its taxes and (iii) so long determined as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which Dividends); provided that no such Dividend shall be made (w) if a Default or Event of Default is then in existence or would exist immediately after giving effect thereto, (x) if a Dividend Suspension Period is then in effect, (y) if the relevant financial information has been delivered pursuant Minimum Liquidity Condition is not satisfied at such time (before and after giving effect to clause (athe respective Dividend) or clause (b) of Section 7.1.1, and (Cz) an Authorized Officer of the Borrower shall have delivered an officer’s certificate on the date of the proposed Dividend certifying that the Cumulative Distributable Cash on such date (after giving effect to all prior and contemporaneous adjustments thereto, except as a certificate result of such Dividend) exceeds the aggregate amount of the proposed Dividend;
(iv) subject to the Agents subordination provisions of the respective indenture governing the respective issuance of Permitted Senior Subordinated Notes and so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay regularly scheduled interest on each issuance of Permitted Senior Subordinated Notes as and when due in form and substance satisfactory accordance with the terms of the Permitted Senior Subordinated Notes Documents;
(v) subject to the Agents (including a calculation subordination provisions of the compliance respective agreements governing the respective issuance of Additional Permitted Subordinated Debt and so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay regularly scheduled interest on each issuance of Additional Permitted Subordinated Debt through the issuance of Additional Permitted Subordinated Debt (but not in cash) as and when due in accordance with the covenants set forth terms of the instruments and agreements governing the respective Additional Permitted Subordinated Debt;
(vi) the Existing 2008 Senior Subordinated Notes Redemption may be consummated as contemplated by Section 6.13(b);
(vii) Existing 2010 Senior Notes and Existing 2010 Senior Subordinated Notes not repurchased in connection with the Tender Offer and Consent Solicitation therefor may from time to time be redeemed in accordance with the terms of the respective indenture therefor and/or repurchased on the open-market, so long as (I) the aggregate amount of cash expended by the Borrower to effect such repurchases or redemptions shall not exceed the sum of (A) the principal amount of the Indebtedness so repurchased or redeemed plus (B) the amount of accrued but unpaid interest on the Indebtedness so repurchased or redeemed through the respective date of repurchase or redemption plus (C) any required premium payable in connection with such repurchase or redemption, (II) no Default or Event of Default then exists or would result therefrom (or, in the case of any redemption of Existing 2010 Senior Notes and/or Existing 2010 Senior Subordinated Notes pursuant to the respective indenture therefor, no Default or Event of Default under Section 8.01 or 8.05 then exists or would result therefrom), (III) all such Existing 2010 Senior Notes and/or any Existing 2010 Senior Subordinated Notes, as the case may be, so repurchased or redeemed are promptly cancelled by the purchaser thereof and (IV) at the time of any delivery of an irrevocable notice of redemption pursuant to the indenture governing the Existing 2010 Senior Notes or the Existing 2010 Senior Subordinated Notes, no Default or Event of Default then exists;
(viii) Indebtedness may be refinanced with the proceeds of Permitted Refinancing Indebtedness in accordance with the requirements of the definition thereof, so long as no Default or Event of Default is in existence at the time of the incurrence of such Permitted Refinancing Indebtedness and immediately after giving effect thereto;
(ix) the Permitted Senior Subordinated Notes may be exchanged for Permitted Exchange Senior Subordinated Notes in accordance with the requirements of the respective definitions thereof and the relevant provisions of this Agreement;
(x) the Permitted Senior Unsecured Notes may be exchanged for Permitted Exchange Senior Unsecured Notes in accordance with the requirements of the respective definitions thereof and the relevant provisions of this Agreement;
(xi) the Transaction shall be permitted to be consummated in accordance with the relevant requirements of this Agreement;
(xii) the Borrower and its Subsidiaries may make payments with respect to Intercompany Debt, so long as the respective payment is permitted to be made in accordance with the terms of the Intercompany Subordination Agreement (giving effect to the exceptions required by applicable regulatory law as contemplated thereby);
(xiii) so long as no Default or Event of Default exists or would result therefrom, the Borrower may pay regularly accruing Dividends on its Disqualified Preferred Stock issued pursuant to Section 7.13(d) in cash and/or through the issuance of additional shares of Disqualified Preferred Stock in accordance with the terms of the documentation governing the same;
(xiv) the Borrower may pay regularly accruing Dividends with respect to Qualified Preferred Stock through the issuance of additional shares of Qualified Preferred Stock (but not in cash) in accordance with the terms of the documentation governing the same;
(xv) the Borrower may redeem shares of Qualified Preferred Stock or Disqualified Preferred Stock or repurchase or refinance any Permitted Senior Unsecured Notes, Permitted Senior Subordinated Notes or Additional Permitted Subordinated Debt with the proceeds of any issuance of Permitted Senior Unsecured Noted or Permitted Junior Capital not required to be applied to repay B Term Loans as a result of the application of clause (v) of the proviso in Section 7.2.43.02(A)(c);
(xvi) certifying so long as to the accuracy (x) no Default or Event of clauses (e)(iii)(A) Default then exists or would exist immediately after giving effect thereto and (e)(iii)(By) abovethe Minimum Liquidity Condition is satisfied at such time, purchasethe Borrower may, redeem, acquire or otherwise retire for value shares within 70 days following the last day of Capital Stock of Holdco or Preferred Stock the first fiscal quarter of the Borrower ended after the Initial Borrowing Date, make a one-time payment of cash Dividends on then outstanding shares of Borrower Common Stock of $0.22543 per share of Borrower Common Stock (which based on the number of outstanding shares of Borrower Common Stock as of the Initial Borrowing Date equates to approximately $777,000);
(xvii) the Borrower may redeem or repurchase shares of Sunflower Telephone Company, Inc. held by directorsthird-party investors, officers so long as (x) no Default or employees Event of Holdco Default then exists or would exist immediately after giving effect thereto and (y) the aggregate amount of all cash paid in respect of all redemptions and/or repurchases pursuant to this clause (xvii) does not exceed $250,000; and
(xviii) the Borrower may redeem or repurchase warrants to purchase shares of STE held by third-party investors, so long as (x) no Default or Event of Default then exists or would exist immediately after giving effect thereto and (y) the aggregate amount of all cash paid in respect of all such redemptions and/or repurchases pursuant to this clause (xviii) does not exceed $250,000.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist (other than as a result of a requirement of law) any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any Subsidiary to (a) pay dividends or make other distributions or pay any Indebtedness owed to the Borrower or any Subsidiary, (b) make loans or advances to the Borrower or any Subsidiary, (c) transfer any of its properties or assets to the Borrower or any Subsidiary or (B) the ability of any Subsidiary to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than (for purposes of clauses (A) and (B)) prohibitions or restrictions existing under or by reason of: (i) this Agreement and the other Credit Documents; (ii) applicable law; (iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices; (iv) any restriction or encumbrance with respect to a Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the capital stock or assets of such Subsidiary, so long as such sale or disposition is permitted under this Agreement; (v) Liens permitted under Sections 7.03(d), (m) and/or (n) and any documents or instruments governing the terms of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to the assets subject to such Liens; (vi) any agreement or instrument governing Permitted Acquired Debt, to the extent such restriction or encumbrance (x) is not applicable to any Person or the properties or assets of any Person (other than the Person or the properties or assets of the Person acquired pursuant to the respective Permitted Acquisition) and (y) was not created (or made more restrictive) in connection with or in anticipation of the respective Permitted Acquisition; (vii) restrictions applicable to any Non-Wholly Owned Subsidiary existing at the time of the acquisition thereof as a result of an Investment pursuant to Section 7.06 or a Permitted Acquisition effected in accordance with Section 6.10; provided that the restrictions applicable to such joint venture are not made more burdensome, from the perspective of the Borrower and its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), than those as in all cases only upon death, disability, retirement, termination of employment or pursuant effect immediately before giving effect to the terms consummation of such stock option plan the respective Investment or Permitted Acquisition; (viii) on and after the execution and delivery thereof, the Permitted Senior Unsecured Notes Documents; (ix) on and after the execution and delivery thereof, the Permitted Senior Subordinated Notes Documents; and (x) on and after the execution and delivery thereof, any other agreement under which such shares of Capital Stock, options, related rights agreements or similar securities were issued (collectively referred instruments relating to as aany Additional Permitted Subordinated Debt.
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereofDeclare or make, directly or indirectly, any Restricted Payment, except that:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to each Subsidiary may make Restricted Payments to Holdco to any Borrower, any Subsidiaries of the extent necessary to enable Holdco to Borrowers that are either Subsidiary Guarantors or Subsidiaries (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as (A) no Event of Default shall have occurred and be continuing on at the date time of any action or would result therefrom) and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is declared being made;
(ii) the Loan Parties and each Subsidiary may declare and make Restricted Payments payable solely in the common stock or to be made, nor would a Default result from the making other common Equity Interests (but not Debt Equivalents) of such Loan Party or Subsidiary;
(iii) so long as no Cash Dominion Event is then in existence or would otherwise arise therefrom, the Parent Borrower may (and the Subsidiaries of the Parent Borrower may declare and make Restricted Payment, (B) after giving effect Payments to the making Parent Borrower not to exceed an amount necessary to permit the Parent Borrower to) redeem or repurchase Equity Interests (or Equity Equivalents) from future, present or former officers, employees, managers, consultants and directors of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees Group Company (or their estates of beneficiaries under their estates), in all cases only spouses or former spouses) (x) upon the death, permanent disability, retirement, retirement or termination of employment or of any such Person and 3616092.7 146 (y) pursuant to the terms of such any management equity plan or stock option plan or any other agreement management benefit or employee benefit plan;
(iv) the Subsidiaries of the Parent Borrower may declare and make Restricted Payments to the Parent Borrower not to exceed an amount necessary to permit the Parent Borrower to pay (A) general corporate overhead expenses of the Parent Borrower (including indemnification claims made by directors or officers of the Parent Borrower) to the extent such expenses are attributable to the ownership or operation of the Parent Borrower and/or its Subsidiaries; (B) U.S. or Canadian federal, state and local income taxes, to the extent such income taxes are attributable to the income of the Parent Borrower and the Restricted Subsidiaries and, to the extent of the amount actually received from its Unrestricted Subsidiaries, in amounts required to pay such taxes to the extent attributable to the income of such Unrestricted Subsidiaries; (C) reasonable fees and expenses incurred in connection with any unsuccessful debt or equity offering by a Loan Party; (D) customary salary, bonus and other benefits payable to officers and employees of the Parent Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Parent Borrower and its Subsidiaries; and (E) any non-cash “deemed dividend” resulting from such parent company offsetting income against losses of the Parent Borrower which does not involve any cash distribution by the Parent Borrower;
(v) if the Specified Conditions are satisfied, the Parent Borrower may (and the Subsidiaries of the Parent Borrower may declare and make Restricted Payments to the Parent Borrower not to exceed an amount necessary to permit the Parent Borrower to) make other Restricted Payments; provided that the aggregate amount of all such Restricted Payments from and after the Restatement Effective Date, does not exceed the sum of the amounts permitted for Restricted Payments (as defined in the Note Indenture) pursuant to Sections 1010(a)(c) of the Note Indenture and 1010(b)(12) of the Note Indenture;
(vi) each Loan Party and each Subsidiary may make non-cash repurchases of Equity Interests deemed to occur upon the exercise of stock options or warrants (a) if such Equity Interest represents a portion of the exercise price of such option and (b) for purposes of tax withholding by the Parent Borrower in connection with such exercise;
(vii) Loan Parties may accrue dividends on any of their Equity Interests other than Debt Equivalents; provided that such dividends may not be paid in cash (except as otherwise permitted hereunder) or otherwise (other than with Equity Interests);
(viii) the Parent Borrower may (and the Subsidiaries of the Parent Borrower may declare and make Restricted Payments to the Parent Borrower not to exceed an amount necessary to permit the Parent Borrower to) make other Restricted Payments not otherwise permitted by this Section 7.06, so long as immediately before and immediately after giving effect to any such Restricted Payment, (x) no Event of Default has occurred and is continuing and (y) there are no Outstanding Amounts under which either Facility;
(ix) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Loan Parties or any Equity Interests of any direct or indirect parent company of the Loan Parties, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of any direct or indirect parent of the Loan Parties (in each case, other than any Debt Equivalents); and 3616092.7 147
(x) [Reserved];
(xi) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if (A) at the date of declaration such payment would have complied with the provisions of this Section 7.06, and (B) the Specified Conditions are satisfied or, with respect to any dividends or distribution in clause (x) above, either (i) the Specified Conditions are satisfied, or (ii) there are no Outstanding Amounts (other than L/C Obligations in an aggregate outstanding amount not to exceed $15,000,000);
(xii) Restricted Payments permitted by Sections 1010(b)(7) and 1010(b)(14) of the Note Indenture so long as the Specified Conditions are satisfied;
(xiii) payments not to exceed $2,500,000 in the aggregate to enable the Parent Borrower to make payments to holders of its Equity Interests in lieu of fractional shares of Capital its Equity Interests;
(xiv) the Parent Borrower and its Subsidiaries may, without duplication, make Restricted Payments in an aggregate amount not to exceed $7,500,000; provided, that, (A) such Restricted Payments shall be paid solely to officers, directors or other employees of the Parent Borrower pursuant to the 2012 Equity Plan of Masonite International Corporation (as in effect on the Restatement Effective Date) and (B) the Payment Conditions are satisfied;
(xv) the Parent Borrower and its Subsidiaries may, without duplication, make Restricted Payments provided that (A) the Payment Conditions are satisfied and (B) there are no Outstanding Amounts (other than L/C Obligations in an aggregate outstanding amount not to exceed $15,000,000);
(xvi) a Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the Parent Borrower or any of its direct or indirect parent companies; provided that (A) the aggregate Restricted Payments made under this clause (xvi) do not exceed $50,000,000 and (B) no Specified Default then exists and is continuing or would exist and be continuing immediately after giving effect to such Restricted Payment; and
(xvii) the distribution, optionsby dividend or otherwise, related rights of shares of capital stock of, or similar securities were issued Indebtedness owed to the Parent Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (collectively referred other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash Equivalents). To the extent that the Parent Borrower or its Subsidiaries are permitted to make Restricted Payments pursuant to this Section 7.06, the same may be made as aa loan or advance to the recipient thereof, and in such case the amount of such loan or advance so made shall reduce the amount of Restricted Payments that may be made by the Parent Borrower and its Subsidiaries in respect thereof.
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the The Borrower will not declarenot, nor will it cause, permit or suffer any Restricted Subsidiary to, (i) declare or pay any dividends or make any dividendother distributions (including through mergers, distribution liquidations or exchange (in cash, property or obligationsother transactions commonly known as leveraged buyouts) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Equity Interests of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower such Restricted Subsidiary (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications paid by a Wholly-Owned Restricted Subsidiary of the Borrower on account of its stock into additional Equity Interests held by the Borrower or another Restricted Subsidiary or payable or paid in shares of Capital Stock of the Borrower other than Redeemable Stock), (ii) make any payment on account of, or set apart money for a sinking or other shares of its common stock) or applyanalogous fund for, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund redemption or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries tosuch Equity Interests, (iiii) purchase, defease, redeem or otherwise retire any Subordinated Indebtedness or (iv) make any payment Restricted Investment, either directly or prepayment indirectly, whether in cash or property or in obligations of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit or any of its Subsidiaries to, make any deposit for any Restricted Subsidiary (all of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as being called "Restricted Payments"); provided, howeverunless, that,
(ex) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Yearcase of a dividend, (ii) pay its taxes such dividend is payable not more than 60 days after the date of declaration and (iiiy) so long as after giving effect to such proposed Restricted Payment, all the conditions set forth in clauses (1) through (3) below are satisfied (A) no Default shall have occurred and be continuing at the date of declaration (in the case of any dividend), (B) at the date of such setting apart (in the case of any such fund) or (C) on the date of such other payment or distribution (in the case of any other Restricted Payment) (each such date being referred to as a "Restricted Payment Computation Date"):
(1) no Default or Event of Default has occurred and is declared continuing or to be made, nor would a Default result from the making of such Restricted Payment, ;
(B2) at the Restricted Payment Computation Date for such Restricted Payment and after giving effect to the making of such Restricted Payment on a pro forma basis, the Borrower shall be in pro forma compliance with or such Restricted Subsidiary could incur $1.00 of additional Indebtedness pursuant to the covenants set forth in first sentence of Section 7.2.4 for 7.2.1; and
(3) the most recent full Fiscal Quarter immediately preceding aggregate amount of Restricted Payments declared, paid or distributed subsequent to the date hereof (including the proposed Restricted Payment) will not exceed the sum of (i) 50% of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer cumulative Consolidated Net Income of the Borrower shall have delivered a certificate for the period subsequent to July 1, 1997 to and including the last day of the Borrower's last fiscal quarter ending prior to the Agents in form and substance satisfactory Restricted Payment Computation Date (each such period to the Agents constitute a "Restricted Payment Computation Period") (including or, if such aggregate cumulative Consolidated Net Income is a calculation loss, minus 100% of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock such loss of the Borrower held during the Restricted Payment Computation Period), (ii) the aggregate Net Cash Proceeds of the issuance or sale or the exercise (other than to a Subsidiary or an employee stock ownership plan or other trust established by directors, officers or employees of Holdco or the Borrower or any of its SubsidiariesSubsidiaries for the benefit of their employees) of the Borrower's Equity Interests (other than Redeemable Stock) subsequent to the Closing Date, (iii) the aggregate Net Cash Proceeds of the issuance or sale (other than to a Subsidiary) of any debt securities of the Borrower that have been converted into or exchanged for Equity Interests (other than Redeemable Stock) of the Borrower to the extent such debt securities were originally issued or sold for cash, plus the aggregate Net Cash Proceeds received by the Borrower at the time of such conversion or exchange, in each case subsequent to the Closing Date, (iv) cash
(A) Restricted Investments in obligations representing a portion of the proceeds of any Asset Sale consummated in accordance with Section 7.2.6; provided, however, that such Restricted Investments will be excluded in the calculation of the amount of Restricted Payments previously made for purposes of clause (3) above; (B) any purchase or redemption of Equity Interests or Subordinated Indebtedness made by exchange for, or options on out of the proceeds of the substantially concurrent sale of, Equity Interests of the Borrower (other than Redeemable Stock and other than Equity Interests issued or sold to a Subsidiary or an employee stock ownership plan); provided, however, that (x) such purchase or redemption will be excluded in the calculation of the amount of Restricted Payments previously made for purposes of clause (3) above and (y) the Net Cash Proceeds from such sale will be excluded for purposes of clause (3) above to the extent utilized for purposes of such purchase or redemption; (C) any purchase or redemption of Subordinated Indebtedness of the Borrower made by exchange for, or out of the proceeds of the substantially concurrent sale of, Subordinated Indebtedness of the Borrower or any Restricted Subsidiary which is permitted to be issued pursuant to Section 7.2.1; provided, however, that such purchase or redemption will be excluded in the calculation of the amount of Restricted Payments previously made for purposes of clause (3) above; (D) the repurchase, redemption or other acquisition or retirement for value of Capital Stock of the Borrower or the Parent held by management or other employees of the Borrower, the Parent or any Restricted Subsidiary pursuant to any shareholders agreement, management or employee stock option agreement or management or employee equity subscription agreement, in accordance with the provisions of any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates)arrangement, in all cases only upon deathan amount not greater than $500,000 in any calendar year plus the portion of any such amounts which remains unused at the end of the two prior calendar years, disabilitybut in no event to exceed $1,500,000 in any calendar year; provided, retirementhowever, termination that any such repurchase, redemption, acquisition or retirement for value will be excluded in the calculation of employment or the amount of Restricted Payments previously made for purposes of clause (3) above; (E) payments to the Parent pursuant to any tax sharing arrangement so long as payments thereunder do not exceed the terms amount of the Borrower and its consolidated subsidiaries' share of Federal and state income taxes actually paid or to be paid by the Parent; provided, however, that such stock option plan payments will be excluded in the calculation of the amount of Restricted Payments previously made for purposes of clause (3) above; (F) payments to the Parent to perform accounting, legal, corporate reporting and administrative functions in the ordinary course of business in an amount not greater than $500,000 in any calendar year, or to pay required fees in connection with the Acquisition and related transactions, including the registration under applicable laws and regulations of its debt or equity securities issued in connection therewith; provided, however, that such payments will be excluded in the calculation of the amount of Restricted Payments previously made for purposes of clause (3) above; and (G) Investments described in clause (vi) of the definition of Permitted Investments; provided, however, that such Investments will be included in the calculation of the amount of Restricted Payments previously made for purposes of clause (3) above. For purposes of this Section, (a) the amount of any Restricted Payment declared, paid or distributed in property of the Borrower or any other agreement under which Restricted Subsidiary will be deemed to be the net book value of any such shares property that is intangible property and the Fair Market Value (as determined by and set forth in a resolution of Capital Stock, options, related rights or similar securities were issued (collectively referred to as athe Board of Directors) of any such property that is
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower No Credit Agreement Party will, nor will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to applyto, declare or pay any dividends (other than dividends payable solely in non-redeemable common stock or comparable common equity interests of Holdings or any such Subsidiary, as the case may be) or return any equity capital to, its fundsstockholders, partners, members or other equity holders or authorize or make any other distribution, payment or delivery of property or assets cash to the purchaseits stockholders, redemptionpartners, exchange, sinking fund members or other retirement ofequity holders as such, or agree redeem, retire, purchase or permit any of its Subsidiaries to purchaseotherwise acquire, redeem directly or exchangeindirectly, for a consideration, any shares of any class of Capital Stock (its capital stock or other Equity Interests, now or hereafter outstanding) outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares or other Equity Interests), or set aside any funds for any of the Borrowerforegoing purposes, warrants, options and no Credit Agreement Party will permit any of its Subsidiaries to purchase or other rights with respect to otherwise acquire for a consideration any shares of any class of Capital Stock (the capital stock or other Equity Interests of any direct or indirect parent of such Subsidiary now or hereafter outstandingoutstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock or other Equity Interests) (all of the Borrower;
(bforegoing "Dividends") the Borrower will not pay or otherwise reimburse (in cash, property or obligations) make any obligation arising under or payments in respect of the Seller Note and will not apply any outstanding Shareholder Subordinated Notes or permit any of its Subsidiaries to apply any of its fundsIntercompany Debt, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;except that:
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make (x) any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer Subsidiary of the Borrower shall have delivered a certificate may pay Dividends to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any Wholly-Owned Subsidiary of the Borrower and (y) any non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its shareholders generally so long as the Borrower or its Subsidiary which owns the Equity Interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interests in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Subsidiary); provided that any Dividend made pursuant to preceding clause (x) to any Wholly-Owned Subsidiary that is not a Credit Party may only be made if (A) (I) no Specified Default and no Event of Default then exists or would result therefrom and (II) such Wholly-Owned Subsidiary promptly distributes and/or transfer any Property received pursuant to such Dividend (directly or indirectly through other Wholly-Owned Subsidiaries) to a Credit Party or (B) the Subsidiary making such Dividend is not a Credit Party; provided however, or options on that, subject to Section 10.01(d)(v), any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant Dividend may be made to the terms Bermuda Partnership notwithstanding the existence of such stock option plan an Event of Default (other than an Event of Default under Section 11.01 or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as a11
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereofEffective Date:
(a) other than the Borrower purchase of units in connection with the exercise of unit options granted pursuant a long-term incentive plan for employees, directors and consultants of the General Partner and its Subsidiaries or pursuant to a unit purchase plan for such employees, the conversion of Subordinated Units into Common Units (as such terms are defined in the MLP Agreement), the redemption of Common Units owned by Shipping Master with the proceeds from the sale of Common Units pursuant to the exercise of the underwriters' over-allotment option in the Equity Offering, the redemption of Excess Units (as defined in the MLP Agreement) to the extent necessary for the MLP to remain in continuous compliance with the citizenship requirements of the Maritime Laws (as such term is defined in the MLP Agreement), and to the extent a portion of the minimum quarterly Distribution is treated as Capital Surplus (as such term is defined in the MLP Agreement), the MLP will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem purchase or exchangeredeem, any shares of any class of Capital Stock capital stock or units or partnership interests or membership interests in (now or hereafter outstanding) of the BorrowerMLP (provided that the foregoing shall not prohibit any such Subsidiary from purchasing any such shares, units or interests from the MLP), or warrants, options or other rights with respect to any shares of any class of Capital Stock capital stock of or membership interests in (now or hereafter outstanding) of the BorrowerMLP;
(b) if a Default or Event of Default shall have occurred and be continuing, or would result therefrom, the Borrower MLP will not declare, pay or otherwise reimburse make any Distribution (in cash, property property, or obligations) on any obligation arising under interests (now or hereafter outstanding) in respect the MLP; provided, however, that the MLP may pay or make a Distribution if at the time such Distribution was declared no Default or Event of Default shall have occurred and be continuing, or resulted therefrom, provided that the Seller Note and will not apply payment or permit any making of its Subsidiaries to apply any such Distribution occurs within 30 days following the declaration of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;such Distribution; and
(c) the Borrower Borrowers will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of by clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in this Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as a7.2.6.
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will notNo Credit Party shall, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not no Credit Party shall permit any of its Subsidiaries to, make any deposit for Restricted Payment, other than:
(a) payments by any Subsidiary of a Borrower to such Borrower or to the direct parent of such Subsidiary (and, in the case of a Restricted Payment by a non-wholly owned Subsidiary, to a Borrower and any other Subsidiaries and to each other owner of Capital Stock of such Subsidiary based on their relative ownership interests of the foregoing purposes (the foregoing prohibited acts referred to in clause (arelevant class of Capital Stock), ;
(b) Restricted Payments by any Credit Party or any of its Subsidiaries to pay dividends with respect to its Capital Stock payable solely in additional shares of its common stock (other than Disqualified Capital Stock);
(c) above or in this clause [reserved];
(d) are herein collectively referred regularly scheduled, nonaccelerated payments with respect to as "Restricted Payments"); providedIndebtedness subordinated to the Obligations (including, howeverwithout limitation, that,seller notes and earnout obligations) to the extent expressly permitted by the applicable subordination agreement or such other subordination terms with respect thereto;
(e) notwithstanding [reserved];
(f) redemptions, repurchases, retirements or other acquisitions of Capital Stock (i) deemed to occur on the provisions exercise of options or warrants by the delivery of Capital Stock in satisfaction of the exercise price of such options or warrants or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management, or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options or vesting of performance stock units or restricted stock units; provided, that, any Restricted Payments made pursuant to this clause (af) above, are not be made in cash;
(g) [reserved]
(h) [reserved];
(i) payment and/or satisfaction of the Borrower shall be permitted to make Restricted Payments to Holdco Existing Earnouts (whether by way of cash payments or issuance of Capital Stock of Administrative Borrower);
(j) [reserved];
(k) to the extent necessary to enable Holdco to no Specified Event of Default has occurred and is continuing at the time of such distribution (i) pay both before and after giving effect thereto), any Credit Party and any of its overhead expenses Subsidiaries may make distributions in an amount not sufficient to exceed $250,000 make payments (with cash or Shareholder Redemption Notes) on account of the purchase, redemption, or other acquisition or retirement of any shares of the Capital Stock of a Credit Party or Subsidiary from former employees, officers, or directors of the Credit Parties and their Subsidiaries (or any spouses, ex-spouses, beneficiaries or estates of any of the foregoing) which may be in the aggregate form of forgiveness of Indebtedness, and Administrative Borrower may make such payments (with cash or Shareholder Redemption Notes) on account of the purchase, redemption, or other acquisition or retirement of any shares of its Capital Stock, and, in each case, make payments to satisfy any tax liabilities arising in connection with such transactions; provided that the amount of such distributions and repurchases (including any such distributions or repurchases in the form of forgiveness of Indebtedness) may not exceed the sum of (x) $1,500,000 in any Fiscal Year plus (y) the amount of the cash proceeds of any permitted issuance of Qualified Capital Stock received by a Borrower for the purpose of making such payments and used solely for such purpose plus (z) key man life insurance proceeds received by the Borrowers or any of their respective Subsidiaries during such Fiscal Year, ;
(iil) pay its Restricted Payments in connection with the retention of Capital Stock in payment of withholding taxes and in connection with equity-based compensation plans that have been approved by a majority of the board of directors (iiior other governing body) so long as of the applicable Credit Party in good faith;
(Am) no Default shall have occurred and be continuing on the making of any Restricted Payment within 60 days after the date of declaration thereof, if at the date of such declaration such Restricted Payment is declared or to be made, nor would a Default result from the making have complied with another provision of such Restricted Payment, (B) after giving effect to this Section 9.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made;
(n) [reserved];
(i) the redemption, repurchase, retirement or other acquisition of any Capital Stock (“Retired Capital Stock”) of Administrative Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date exchange for, or out of the payment proceeds of, the substantially concurrent sale of, Capital Stock of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) Administrative Borrower or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate contributions to the Agents in form and substance satisfactory to the Agents equity capital of Administrative Borrower (other than any Disqualified Capital Stock) (collectively, including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(Aany such contributions, “Refunding Capital Stock”) and (e)(iii)(Bii) above, purchase, redeem, acquire or otherwise retire for value shares the declaration and payment of dividends on the Retired Capital Stock out of the proceeds of the substantially concurrent sale of Refunding Capital Stock;
(p) Restricted Payments (x) in the form of distributions of Capital Stock (other than Disqualified Capital Stock) and payments in respect of Holdco fractional shares upon the conversion or Preferred exchange of Capital Stock (including options and warrants) or (y) upon the conversion or exchange of Subordinated Debt to the Borrower held extent expressly permitted by directors, officers the applicable subordination agreement or employees of Holdco or the such other subordination terms with respect thereto;
(q) Administrative Borrower or any of the Subsidiaries may pay cash in lieu of fractional Capital Stock in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock;
(r) to the extent no Event of Default has occurred or is continuing or would result immediately after giving effect to such payment, and to the extent not prohibited by the applicable subordination provisions applicable thereto, Administrative Borrower and its SubsidiariesSubsidiaries may pay earn-outs, or options on any such shares or related stock appreciation rights seller notes, deferred purchase price obligations, holdbacks or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or obligations that were incurred pursuant to Section 9.01(x); or
(s) to the terms extent constituting Restricted Payments, the Borrowers and their respective Subsidiaries may enter into and consummate transactions permitted by Section 9.04 (other than Section 9.04(e)) and Section 9.05 (other than Section 9.05(l)). To the extent that Administrative Borrower or its Subsidiaries are permitted to make any Restricted Payments pursuant to this Section 9.06, the same may be made as a loan or advance to the recipient thereof, and in such case the amount of such stock option plan loan or any other agreement under which such shares advance so made shall reduce the amount of Capital Stock, options, related rights Restricted Payments that may be made by Administrative Borrower or similar securities were issued (collectively referred to as aits Subsidiaries in respect thereof.
Appears in 1 contract
Samples: Credit Agreement (Paragon 28, Inc.)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Each Borrower will not, and will not permit any of its Subsidiaries to, make any Restricted Payment, or make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a)Restricted Payment, (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,other than:
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not for customary director indemnification payments to exceed $250,000 in the aggregate in any Fiscal Yeardirectors (or equivalent persons) of such Person, (ii) pay its taxes for reasonable and customary fees to outside directors (or equivalent persons) of such Person and for customary director (or equivalent persons) and officers insurance premiums owed by such Person, (iii) for financial, other reporting and similar customary administrative or overhead costs and expenses of such Person, (iv) for obligations incurred in the Ordinary Course of Business to the extent relating to activities permitted under this Agreement and (iiiv) for Tax Distributions;
(b) payments by any Subsidiary of any Borrower to its direct parent (other than GPM) so long as such parent is (Ai) no Default a direct or indirect wholly-owned Subsidiary of any Borrower, (ii) GPM or (iii) a direct parent (other than GPM or a direct or indirect parent of GPM) of a non-wholly-owned Subsidiary, in which case such payment shall have occurred and be continuing made pro rata to such parent based on its relative ownership interests in the date such Restricted Payment is declared or to be made, nor would a Default result from the making class of equity receiving such Restricted Payment, ;
(Bc) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held Payments by directors, officers or employees of Holdco or the any Borrower or any of its SubsidiariesSubsidiaries to pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Equity Interests);
(d) Restricted Payments to repurchase, redeem or options on otherwise acquire or retire for value any such shares Equity Interests of the Borrowers or related stock appreciation rights their Subsidiaries held by any current or similar securities owned by such directorsformer employee, officers director, consultant or employees officer (or their transferees, spouses, ex-spouses, estates of or beneficiaries under their estates)) of any Borrower or Subsidiary of any Borrower pursuant to any employee equity subscription agreement, in all cases only stock option agreement or stock ownership arrangement, including upon the death, disability, retirement, severance or termination of employment or service of such Persons to the extent (i) not exceeding $1,000,000 in the aggregate during any fiscal year (plus (x) any amounts funded with issuances of Equity Interests of the Borrowers (or any direct or indirect parent entity thereof) or proceeds in respect thereof used to repurchase such Equity Interests and (y) amounts solely in the form of forgiveness of Indebtedness of such Persons owing to the Borrowers on account of redemptions or repurchases of the Equity Interests of the Borrowers held by such Persons) and (ii) both before and after giving effect to any such payment, no Specified Event of Default or Financial Covenant or Financial Reporting Event of Default exists or would immediately thereafter occur as a result thereof; provided that to the extent any amounts remain unused under subclause (i) of this clause (d) in a given fiscal year of the Borrowers may be carried forward and made in the immediately succeeding fiscal year of the Borrowers without regard to any caps set forth herein;
(i) Restricted Payments in connection with the Profits Interest Agreement and (ii) Restricted Payments in an aggregate amount of up to $1,000,000 per fiscal year to pay advisory fees pursuant to the terms of such stock option plan or Axxx Advisory Agreement plus any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred amounts accrued and not paid for periods prior to as athe Closing Date;
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (ARKO Corp.)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower Each Credit Party will not, and will not permit any of its Subsidiaries toSubsidiaries, (i) to make any payment or prepayment of principal ofRestricted Payment, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any Restricted Payment, other than, in each case to the extent that such payment is not made using proceeds of equity received as a Cure Amount:
(a) cash payments to Holdings (and Holdings may pay to any direct or indirect parent company) to be used, without duplication (i) for customary director indemnification payments to the directors of such Person, (ii) for reasonable and customary fees to outside directors of such Person, (iii) for financial, other reporting and similar customary administrative costs and expenses of such Person, (iv) to pay licensing (and similar) expenses, franchise taxes, and other fees, taxes and expenses required to maintain the legal existence of Holdings and/or such direct or indirect parent company, to the extent incurred in the ordinary course of business, (v) for operating, overhead, legal, accounting and other professional fees and expenses, (vi) to pay customary salary, bonus and other benefits on behalf of officers and employees of any parent entity and (vii) to pay fees related to any investment or offering of securities of Holdings (or any direct or indirect parent company) whether or not such investment or offering is consummated; provided, that in the case of clause (iv) and (v), cash payments to Holdings or such parent company shall be permitted only to the extent related to Holdings or such parent company’s ownership of the foregoing purposes (Borrowers and their Subsidiaries or Holdings and its Subsidiaries, as the foregoing prohibited acts referred case may be, and in order to permit Holdings or such parent company to make such payments, and, in the case of clause (aiv), shall be shared ratably by any other Subsidiaries of Holdings or such parent company, as the case may be;
(b) to permit Holdings (or any such direct or indirect parent company of Holdings) to pay, for any taxable period for which Holdings and/or any of its Subsidiaries are members of a consolidated, combined or similar income tax group for U.S. federal and/or applicable state or local income tax purposes (a “Tax Group”) of which Holdings or any direct or indirect parent company of Holdings is the common parent, any consolidated, combined or similar Taxes of such Tax Group that are due and payable by Holdings or such direct or indirect parent company of Holdings for such taxable period, but only to the extent attributable to Holdings and/or its Subsidiaries; provided that (x) the amount of such Restricted Payments for any taxable period shall not exceed the amount of such Taxes that Holdings and its Subsidiaries would have paid if Holdings and its Subsidiaries were a stand-alone Tax Group and (y) the amount of such Restricted Payments in respect of an Excluded Subsidiary shall be permitted only to the extent that distributions were made by such Excluded Subsidiary to the Credit Parties for such purpose;
(c) above payments by any Subsidiary of any Credit Party to its direct parent (other than Holdings) so long as such parent is (i) a direct or indirect wholly-owned subsidiary of any Credit Party or (ii) a Borrower;
(d) Restricted Payments by any Credit Party or any its Subsidiaries to pay dividends with respect to its Capital Stock payable solely in additional shares of its Capital Stock (other than Disqualified Capital Stock);
(e) Restricted Payments to repurchase, redeem or otherwise acquire or retire for value any Capital Stock of Holdings or any direct or indirect parent thereof held by any employee, director, consultant or officer of any Credit Party or Subsidiary of any Credit Party pursuant to any employee equity subscription agreement, stock option agreement or stock ownership arrangement to the extent not exceeding (x) in the aggregate per fiscal year, the greater of (i) $15,000,000 and (ii) 15% of Pro Forma Consolidated Adjusted EBITDA and (y) in the aggregate during the term of this Agreement, the greater of (i) $50,000,000 and (ii) 50% of Pro Forma Consolidated Adjusted EBITDA (plus (x) any amounts funded with issuances of Capital Stock of Holdings or proceeds in respect thereof used to repurchase such Capital Stock, (y) amounts solely in the form of forgiveness of Indebtedness of such Persons owing to Holdings or any Credit Party on account of redemptions or repurchases of the Capital Stock of Holdings held by such Persons and (z) the net cash proceeds of any “key-man” life insurance policies that have not been used to make repurchases, redemptions or payments under this clause (z)) and (ii) both before and after giving effect to any such payment, no Event of Default exists or would immediately thereafter occur as a result thereof; provided, that any amount of the aforementioned basket in this clause (de) are herein collectively referred not used in any fiscal year may be carried forward for up to as "two subsequent fiscal years, and in any such subsequent fiscal years, amounts utilized will be applied to amounts carried forward, before being applied to the amount otherwise permitted for such fiscal year; provided further, that any Restricted Payments"); provided, however, that,Payments using the aforementioned basket shall not exceed $10,000,000 in the aggregate prior to a Pricing Grid Election.
(ef) notwithstanding if Sponsor and/or its Controlled Affiliates shall have made a direct or indirect cash equity contribution to a Borrower to fund any Investment permitted hereunder and such Investment is not made within ten (10) Business Days after receipt of such equity contributions, such Borrower may directly or indirectly return such equity contributions to such Persons in cash, either directly or indirectly, by distribution to Holdings for redistribution to any direct or indirect parent company to effect such return of contributions so long as such return is completed within thirty (30) days after receipt of such equity contributions;
(g) payments of Indebtedness of the provisions of clause (atype described in Section 10.01(l) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to made in conformity with the terms of Section 10.01(l);
(h) Restricted Payments in connection with the Transactions;
(i) pay so long as (I) prior to a Pricing Grid Election, no Event of Default exists or (II) on and after a Pricing Grid Election, no Specified Event of Default or Financial Performance Covenant Event of Default exists, Restricted Payments utilizing the Available Amounts Basket;
(j) upon receipt by Holdings or any of its overhead expenses Subsidiaries of (x) any purchase price adjustment and/or (y) any Net Disposition Proceeds received with respect to a Disposition permitted pursuant to Section 10.04(o) hereof, Holdings or such Subsidiary may, to the extent on a Pro Forma Basis immediately after giving effect to such distribution, the Credit Parties are in compliance with the then applicable Financial Performance Covenant(s) for the most recently ended fiscal quarter for which financial statements have been provided to the Administrative Agent, make distributions in cash to its direct or indirect equity holders in an amount not to exceed $250,000 in (i) the aggregate in any Fiscal Yearamount of such purchase price adjustment or Net Disposition Proceeds received, times (ii) the Equity Funded Percentage for such Permitted Acquisition or such IP Acquisition, as applicable;
(k) Holdings may pay its taxes cash in lieu of fractional equity interests in connection with any dividend, split or combination thereof, any Permitted Acquisition, Investment or any IP Acquisition;
(l) (x) the Borrowers may make distributions, directly or indirectly, to Holdings or any direct or indirect parent thereof to enable the applicable entity to pay fees and expenses in connection with a Qualifying IPO (whether or not successful) and (iiiy) upon a Qualifying IPO, the Borrowers may directly or indirectly pay cash Restricted Payments to Holdings to permit Holdings or any direct or indirect parent thereof to make, and Holdings or any direct or indirect parent thereof may make, cash Restricted Payments to its equity holders in an aggregate amount not exceeding the sum of (i) 6.0 % per annum of the Net Cash Proceeds received by any Borrower from such Qualifying IPO and (ii) an aggregate amount per annum not to exceed 5.0% of Market Capitalization;
(m) payment of Permitted Management Payments;
(n) so long as (I) prior to a Pricing Grid Election, no Specified Event of Default or Financial Performance Covenant Event of Default exists or (II) on and after a Pricing Grid Election, no Specified Event of Default exists, Restricted Payments in cash by the Credit Parties and their Subsidiaries not to exceed (I) prior to a Pricing Grid Election, $15,000,000 or (II) on and after a Pricing Grid Election, the greater of (i) $15,000,000 and (ii) 15% of Pro Forma Consolidated Adjusted EBITDA, in each case minus any amount the Administrative Borrower may, from time to time, elect to reallocate from this clause (n) (the “General RP Basket”) to the General Investments Basket;
(o) Restricted Payments constituting any part of (i) any Permitted Tax Reorganization and (ii) any Permitted IPO Reorganization Transaction;
(p) distributions or payments of securitization fees, sales contributions and other transfers of Securitization Assets or Receivables Assets and purchases of Securitization Assets or Receivables Assets pursuant to customary repurchase obligations, in each case in connection with a Qualified Securitization Financing or a Receivables Facility permitted under Section 10.01(x); and
(q) on and after a Pricing Grid Election, unlimited additional Restricted Payments by the Credit Parties and their Subsidiaries; provided, that (A) on a Pro Forma Basis, as of the last day of the most recently ended Test Period, the Total Net Leverage Ratio does not exceed 5.50:1.00 and (B) no Event of Default shall have occurred and be continuing on or would immediately thereafter result therefrom;
(r) Restricted Payments funded with equity proceeds of Qualified Capital Stock that do not increase the date such Restricted Payment is declared Available Amounts Basket or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be capital contributions paid in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date respect of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Qualified Capital Stock of Holdco Holdings (or Preferred a direct or indirect parent company thereof) and contributed as Qualified Capital Stock to a Borrower which have not otherwise been applied for another purposes and that do not increase the Available Amounts Basket; and
(s) Restricted Payments with respect to options and restricted stock units of the Borrower held Target that were issued and unvested on the Closing Date in line with the options and restricted stock units vesting schedule provided to the Administrative Agent on March 12, 2020 unless otherwise agreed by directorsthe Administrative Agent; provided that such Restricted Payments shall be reduced by all cash and Cash Equivalents no longer required to be paid due to the retirement of such restricted stock units or other events as described in the governing documents thereof that would reduce such payment, officers or employees in each case in respect of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related restricted stock appreciation rights units or similar securities owned by such directors, officers instruments on or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to after the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aClosing Date.
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the The Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a)Restricted Payment, (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, except that,:
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) (x) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower and (y) any Non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its overhead expenses shareholders generally, so long as the Borrower or its respective Subsidiary which owns the equity interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the equity interests in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of equity interests of such Subsidiary);
(ii) the Borrower may redeem or repurchase shares of Borrower Common Stock (or options, warrants and/or appreciation rights in respect thereof) from shareholders, officers, employees, consultants and directors (or their estates) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise in accordance with any shareholder agreement, stock option plan or any employee stock ownership plan, provided that (x) no Default or Event of Default is then in existence or would arise therefrom and (y) the aggregate amount of all cash paid in respect of all such shares, options, warrants and rights so redeemed or repurchased in any calendar year, does not exceed $2,000,000;
(iii) the Borrower may declare and pay Dividends to the holders of Borrower Common Stock (including by way of the repurchase of outstanding shares of Borrower Common Stock) in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, amount of Cumulative Distributable Cash at such time (ii) pay its taxes and (iii) so long determined as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which Dividends); provided that no such Dividend shall be made (w) if a Default or Event of Default is then in existence or would exist immediately after giving effect thereto, (x) if a Dividend Suspension Period is then in effect, (y) if the relevant financial information has been delivered pursuant Minimum Liquidity Condition is not satisfied at such time (before and after giving effect to clause (athe respective Dividend) or clause (b) of Section 7.1.1, and (Cz) an Authorized Officer of the Borrower shall have delivered an officer’s certificate on the date of the proposed Dividend certifying that the Cumulative Distributable Cash on such date (after giving effect to all prior and contemporaneous adjustments thereto, except as a certificate result of such Dividend) exceeds the aggregate amount of the proposed Dividend;
(iv) subject to the Agents subordination provisions of the respective indenture governing the respective issuance of Permitted Senior Subordinated Notes and so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay regularly scheduled interest on each issuance of Permitted Senior Subordinated Notes as and when due in form and substance satisfactory accordance with the terms of the Permitted Senior Subordinated Notes Documents;
(v) subject to the Agents (including a calculation subordination provisions of the compliance respective agreements governing the respective issuance of Additional Permitted Subordinated Debt and so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay regularly scheduled interest on each issuance of Additional Permitted Subordinated Debt through the issuance of Additional Permitted Subordinated Debt (but not in cash) as and when due in accordance with the covenants set forth terms of the instruments and agreements governing the respective Additional Permitted Subordinated Debt;
(vi) the Existing 2008 Senior Subordinated Notes Redemption may be consummated as contemplated by Section 6.13(b);
(vii) Existing 2010 Senior Notes and Existing 2010 Senior Subordinated Notes not repurchased in connection with the Tender Offer and Consent Solicitation therefor may from time to time be redeemed in accordance with the terms of the respective indenture therefor and/or repurchased on the open-market, so long as (I) the aggregate amount of cash expended by the Borrower to effect such repurchases or redemptions shall not exceed the sum of (A) the principal amount of the Indebtedness so repurchased or redeemed plus (B) the amount of accrued but unpaid interest on the Indebtedness so repurchased or redeemed through the respective date of repurchase or redemption plus (C) any required premium payable in connection with such repurchase or redemption, (II) no Default or Event of Default then exists or would result therefrom (or, in the case of any redemption of Existing 2010 Senior Notes and/or Existing 2010 Senior Subordinated Notes pursuant to the respective indenture therefor, no Default or Event of Default under Section 8.01 or 8.05 then exists or would result therefrom), (III) all such Existing 2010 Senior Notes and/or any Existing 2010 Senior Subordinated Notes, as the case may be, so repurchased or redeemed are promptly cancelled by the purchaser thereof and (IV) at the time of any delivery of an irrevocable notice of redemption pursuant to the indenture governing the Existing 2010 Senior Notes or the Existing 2010 Senior Subordinated Notes, no Default or Event of Default then exists;
(viii) Indebtedness may be refinanced with the proceeds of Permitted Refinancing Indebtedness in accordance with the requirements of the definition thereof, so long as no Default or Event of Default is in existence at the time of the incurrence of such Permitted Refinancing Indebtedness and immediately after giving effect thereto;
(ix) the Permitted Senior Subordinated Notes may be exchanged for Permitted Exchange Senior Subordinated Notes in accordance with the requirements of the respective definitions thereof and the relevant provisions of this Agreement;
(x) the Permitted Senior Unsecured Notes may be exchanged for Permitted Exchange Senior Unsecured Notes in accordance with the requirements of the respective definitions thereof and the relevant provisions of this Agreement;
(xi) the Transaction shall be permitted to be consummated in accordance with the relevant requirements of this Agreement;
(xii) the Borrower and its Subsidiaries may make payments with respect to Intercompany Debt, so long as the respective payment is permitted to be made in accordance with the terms of the Intercompany Subordination Agreement (giving effect to the exceptions required by applicable regulatory law as contemplated thereby);
(xiii) so long as no Default or Event of Default exists or would result therefrom, the Borrower may pay regularly accruing Dividends on its Disqualified Preferred Stock issued pursuant to Section 7.13(d) in cash and/or through the issuance of additional shares of Disqualified Preferred Stock in accordance with the terms of the documentation governing the same;
(xiv) the Borrower may pay regularly accruing Dividends with respect to Qualified Preferred Stock through the issuance of additional shares of Qualified Preferred Stock (but not in cash) in accordance with the terms of the documentation governing the same;
(xv) the Borrower may redeem shares of Qualified Preferred Stock or Disqualified Preferred Stock or repurchase or refinance any Permitted Senior Subordinated Notes or Additional Permitted Subordinated Debt with the proceeds of any issuance of Permitted Junior Capital not required to be applied to repay Term Loans as a result of the application of clause (iv) of the proviso in Section 7.2.43.02(A)(c);
(xvi) certifying so long as to the accuracy (x) no Default or Event of clauses (e)(iii)(A) Default then exists or would exist immediately after giving effect thereto and (e)(iii)(By) abovethe Minimum Liquidity Condition is satisfied at such time, purchase, redeem, acquire or otherwise retire for value shares the Borrower may make a one-time payment of Capital cash Dividends on the Borrower Common Stock within 70 days following the last day of Holdco or Preferred Stock the first fiscal quarter of the Borrower ended after the Initial Borrowing Date in an aggregate amount equal to approximately $[ ] million;
(xvii) the Borrower may redeem or repurchase shares of Sunflower Telephone Company, Inc. held by directorsthird-party investors, officers so long as (x) no Default or employees Event of Holdco Default then exists or would exist immediately after giving effect thereto and (y) the aggregate amount of all cash paid in respect of all redemptions and/or repurchases pursuant to this clause (xvii) does not exceed $250,000; and
(xviii) the Borrower may redeem or repurchase warrants to purchase shares of STE held by third-party investors, so long as (x) no Default or Event of Default then exists or would exist immediately after giving effect thereto and (y) the aggregate amount of all cash paid in respect of all such redemptions and/or repurchases pursuant to this clause (xviii) does not exceed $250,000.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist (other than as a result of a requirement of law) any encumbrance or restriction which prohibits or otherwise restricts (A) the ability of any Subsidiary to (a) pay dividends or make other distributions or pay any Indebtedness owed to the Borrower or any Subsidiary, (b) make loans or advances to the Borrower or any Subsidiary, (c) transfer any of its properties or assets to the Borrower or any Subsidiary or (B) the ability of any Subsidiary to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than (for purposes of clauses (A) and (B)) prohibitions or restrictions existing under or by reason of: (i) this Agreement and the other Credit Documents; (ii) applicable law; (iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices; (iv) any restriction or encumbrance with respect to a Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the capital stock or assets of such Subsidiary, so long as such sale or disposition is permitted under this Agreement; (v) Liens permitted under Sections 7.03(d), (m) and/or (n) and any documents or instruments governing the terms of any Indebtedness or other obligations secured by any such Liens, provided that such prohibitions or restrictions apply only to the assets subject to such Liens; (vi) any agreement or instrument governing Permitted Acquired Debt, to the extent such restriction or encumbrance (x) is not applicable to any Person or the properties or assets of any Person (other than the Person or the properties or assets of the Person acquired pursuant to the respective Permitted Acquisition) and (y) was not created (or made more restrictive) in connection with or in anticipation of the respective Permitted Acquisition; (vii) restrictions applicable to any Non-Wholly Owned Subsidiary existing at the time of the acquisition thereof as a result of an Investment pursuant to Section 7.06 or a Permitted Acquisition effected in accordance with Section 6.10; provided that the restrictions applicable to such joint venture are not made more burdensome, from the perspective of the Borrower and its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), than those as in all cases only upon death, disability, retirement, termination of employment or pursuant effect immediately before giving effect to the terms consummation of such stock option plan the respective Investment or Permitted Acquisition; (viii) on and after the execution and delivery thereof, the Permitted Senior Unsecured Notes Documents; (ix) on and after the execution and delivery thereof, the Permitted Senior Subordinated Notes Documents; and (x) on and after the execution and delivery thereof, any other agreement under which such shares of Capital Stock, options, related rights agreements or similar securities were issued (collectively referred instruments relating to as aany Additional Permitted Subordinated Debt.
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereofDirectly or indirectly:
(ai) the Borrower will not declare, declare or pay (without duplication) any dividend or make any dividendother payment or distribution on account of the Borrower's or any of its Subsidiaries' Equity Interests or to the direct or indirect holders of the Borrowers' or any of its Subsidiaries' Equity Interests in their capacity as such (other than dividends, distribution payments or exchange distributions (A) payable in cash, property or obligations) on or in respect of any shares of any class of Capital Stock Equity Interests (now or hereafter outstandingother than Disqualified Stock) of the Borrower or on (B) to the Borrower or a Subsidiary the Borrower);
(ii) purchase, redeem or otherwise acquire or retire for value any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) Equity Interests of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, held by Persons other than the Borrower or any of its fundsWholly Owned Subsidiaries;
(iii) make any principal payment on or purchase, property redeem, defease or assets otherwise acquire or retire for value any Subordinated Indebtedness, in each case prior to the scheduled maturity, scheduled repayment or scheduled sinking fund payment, except purchase, repurchase, redemption, exchange, defeasance or other acquisition or retirement of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or other retirement offinal maturity, or agree or permit any in each case due within one year of its Subsidiaries to the date of such purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchaserepurchase, redemption, exchange, sinking fund defeasance or other retirement of the Seller Note;acquisition or retirement; or
(civ) the Borrower will notmake any Restricted Investment, (all such payments and will not permit any of its Subsidiaries to, other actions set forth in CLAUSES (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or through (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (civ) above or in this clause (d) are herein being collectively referred to as "Restricted PaymentsRESTRICTED PAYMENTS"); provided, however, that,PROVIDED that the preceding provisions will not prohibit:
(ei) notwithstanding the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, this Agreements;
(ii) pay the payment of any dividend by a Subsidiary of the Borrower to the holders of its taxes and Equity Interests on a pro rata basis;
(iii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeemrepurchase, acquire redemption, acquisition or otherwise retire retirement for value shares of any Capital Stock of Holdco or Preferred Stock of the Borrower held upon the exercise of warrants, options or similar rights if such Capital Stock constitutes all or a portion of the exercise price or is surrendered in connection with satisfying any federal or state income tax obligation incurred in connection with such exercise; PROVIDED that no cash payment in respect of such purchase, repurchase, redemption, acquisition, retirement or exercise shall be made by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries;
(iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower held by any current or former employee, officer, director or consultant of the Borrower (or any of its Subsidiaries) or their respective estates, spouses, former spouses or family members; PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year will not exceed $1,500,000, such amount to be increased in any fiscal year by (A) the net cash proceeds of sales of Equity Interests (other than Disqualified Stock) of the Borrower (or from the exercise of options on therefor) to any current or former employee, officer, director or consultant of the Borrower (or any of its Subsidiaries) or their respective estates, spouses, former spouses or family members and (B) the proceeds of any key man life insurance policies (with any unused amounts in this CLAUSE (VIII) in any such fiscal year permitted to be used in any other fiscal year, PROVIDED that the aggregate amount of repurchases made pursuant to this CLAUSE (IV) may not exceed $3,000,000 in any fiscal year);
(v) the payment of cash in lieu of the issuance of fractional shares of Equity Interests upon conversion or related stock appreciation rights exchange of securities convertible into or similar securities owned exchangeable for Equity Interests of the Borrower;
(vi) any Restricted Payment occurring in connection with any of the Transactions;
(vii) Payments or distributions to dissenting stockholders pursuant to or in connection with a consolidation, merger or transfer of assets;
(viii) the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued by the Borrower after the Closing Date solely for the purpose of retiring, redeeming or repurchasing in cash, the Series A Warrants upon exercise thereof, PROVIDED, HOWEVER, that (A) the Borrower would have had a Fixed Charge Coverage Ratio of at least 2.0 to 1.0 for the most recently ended four full fiscal quarters for which internal financial statements of the Borrower are available immediately preceding (x) the date of issuance of such directors, officers or employees Designated Preferred Stock and (or their estates y) the date of beneficiaries under their estates)declaration of any such dividends on Designated Preferred Stock, in each case, after giving effect to such issuance or declaration on a pro forma basis, and (B) the aggregate amount of dividends declared and paid pursuant to this clause (ix) does not exceed the net cash proceeds actually received by the Borrower from any such sale of Designated Preferred Stock (other than Disqualified Stock) issued after the Closing Date;
(ix) Restricted Payments not otherwise permitted by clauses (I) through (VIII) above in n aggregate amount not exceeding $2,500,000 from and after the Closing Date. The amount of all cases only upon deathRestricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Borrower or such Subsidiary, disabilityas the case may be, retirement, termination of employment or pursuant to the terms Restricted Payment. For purposes of determining compliance with this Section, in the event that a proposed Restricted Payment (or portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in CLAUSES (i) through (ix) of the proviso above, the Borrower will be entitled to classify or reclassify such stock option plan Restricted Payment (or portion thereof) on the date of its payment in any manner that complies with this Section. It is understood and agreed that cancellation of Indebtedness owing to the Borrower or an Subsidiary from employees, directors or consultants of the Borrower or any Subsidiary in connection with a repurchase of Equity Interests of the Borrower to the extent described in CLAUSE (iv) of the proviso of this Section will not be deemed to constitute a Restricted Payment for purposes of this Section or any other agreement under which such shares provision of Capital Stock, options, related rights or similar securities were issued (collectively referred to as athis Agreement.
Appears in 1 contract
Samples: Senior Secured Bridge Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will notNo Credit Party shall, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not no Credit Party shall permit any of its Subsidiaries to, make any Restricted Payment, or make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a)Restricted Payment, (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause other than: (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in payments by any Fiscal Year, (ii) pay its taxes and (iii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer Subsidiary of the Borrower shall have delivered a certificate to the Agents Borrower or its direct parent (and, in form and substance satisfactory the case of a Restricted Payment by a non-wholly owned Subsidiary, to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as Borrower and any other Subsidiaries and to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares each other owner of Capital Stock of Holdco such Subsidiary based on their relative ownership interests of the relevant class of Capital Stock); (b) Restricted Payments by any Credit Party or Preferred any of its Subsidiaries to pay dividends with respect to its Capital Stock payable solely in additional shares of its common stock (other than Disqualified Capital Stock); (c) Restricted Payments by any Credit Party or any of its Subsidiaries to Parent to enable Parent to pay any applicable income or franchise Taxes then due and payable, to the extent such Taxes are attributable to the activities or income of the Borrower and its Subsidiaries; (d) regularly scheduled, nonaccelerated payments with respect to Indebtedness subordinated to the Obligations (including, without limitation, seller notes and earnout obligations) 95 to the extent expressly permitted by the applicable subordination agreement or such other subordination terms with respect thereto; (e) the 2021 Convertible Notes Repurchase on the maturity date (as set forth in the 2021 Convertible Notes); (f) redemptions, repurchases, retirements or other acquisitions of Capital Stock (i) deemed to occur on the exercise of options by the delivery of Capital Stock in satisfaction of the exercise price of such options or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management, or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options; provided, that, any Restricted Payments made pursuant to this clause (f) are not be made in cash; (g) conversion of the 2021 Convertible Notes and the 2025 Convertible Notes into Qualified Capital Stock of Parent in accordance with the terms thereof; (h) all mandatory or scheduled payments in respect of the Convertible Senior Notes; (i) payment and/or satisfaction of the (i) Existing Earnouts (whether by way of cash payments or issuance of Capital Stock of the Parent) and (ii) the Global Share Backstop; (j) payments in respect of the Warrants; (k) to the extent no Event of Default has occurred and is continuing at the time of such distribution (both before and after giving effect thereto), any Credit Party and any of its Subsidiaries may make distributions in an amount sufficient to make payments (with cash or Shareholder Redemption Notes) on account of the purchase, redemption, or other acquisition or retirement of any shares of the Capital Stock of a Credit Party or Subsidiary from former employees, officers, or directors of the Credit Parties and their Subsidiaries (or any spouses, ex- spouses, beneficiaries or estates of any of the foregoing) which may be in the form of forgiveness of Indebtedness, and Parent may make such payments (with cash or Shareholder Redemption Notes) on account of the purchase, redemption, or other acquisition or retirement of any shares of its Capital Stock, and, in each case, make distributions to satisfy any tax liabilities arising in connection with such transactions; provided that the amount of such distributions and repurchases (including any such distributions or repurchases in the form of forgiveness of Indebtedness) may not exceed the sum of (x) $1,000,000 in any fiscal year plus (y) the amount of the cash proceeds of any permitted issuance of Qualified Capital Stock received by the Parent or Borrower held for the purpose of making such payments and used solely for such purpose plus (z) key man life insurance proceeds received by directorsthe Parent, officers or employees of Holdco or the Borrower or any of its Subsidiariestheir Subsidiaries during such fiscal year; (l) the put and call arrangements and any payment obligations set forth in the Passport Stockholders Agreement; (m) the making of any Restricted Payment within 60 days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied 96
(i) the redemption, repurchase, retirement or other acquisition of any Capital Stock (“Retired Capital Stock”) of Parent in exchange for, or options on out of the proceeds of, the substantially concurrent sale of, Capital Stock of Parent or contributions to the equity capital of Parent (other than any Disqualified Capital Stock) (collectively, including any such shares or related stock appreciation rights or similar securities owned contributions, “Refunding Capital Stock”) and (ii) the declaration and payment of dividends on the Retired Capital Stock out of the proceeds of the substantially concurrent sale of Refunding Capital Stock; (p) the Parent and its Subsidiaries may make any payments required by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan the TRA; (q) the Parent or any of the Subsidiaries may pay cash in lieu of fractional Capital Stock in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other agreement under which such shares of securities convertible into or exchangeable for Capital Stock; (r) to the extent no Event of Default has occurred or is continuing and to the extent not prohibited by the applicable subordination provisions applicable thereto, optionsthe Parent and its Subsidiaries may pay earn-outs, related rights seller notes, deferred purchase price obligations, holdbacks or similar securities obligations that were issued incurred pursuant to Section 9.01(x); and (collectively referred s) to the extent constituting Restricted Payments, the Borrower and its Subsidiaries may enter into and consummate transactions permitted by Section 9.04 (other than Section 9.04(e)) and Section 9.05 (other than Section 9.05(l)). To the extent that the Parent or its Subsidiaries are permitted to make any Restricted Payments pursuant to this Section 9.06, the same may be made as aa loan or advance to the recipient thereof, and in such case the amount of such loan or advance so made shall reduce the amount of Restricted Payments that may be made by the Parent or its Subsidiaries in respect thereof.
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Restricted Payments, etc. On and at all times after None of the date hereofBorrower or any of the Subsidiaries will declare or make a Restricted Payment or make any deposit for any Restricted Payment, except:
(a) Restricted Payments made by the Borrower will not declareor any Subsidiaries to any Loan Party; (b) (i) payments of interest on any applicable Indebtedness as required by and in accordance with the definitive documentation governing such applicable Indebtedness, pay (ii) required payments of principal, and any accrued interest, premium and fees thereon, at the scheduled maturity date of such applicable Indebtedness and (iii) the issuance of Capital Securities in connection with or make any dividendas part of the conversion, distribution redemption, retirement, payment, repurchase, exchange or exchange (in cash, property or obligations) on or in respect cancellation of any shares of any class such applicable Indebtedness; (c) redemption, repurchases, retirement or other acquisition or retirement for value of Capital Stock (now or hereafter outstanding) Securities of the Borrower held by any future, present or on former service provider, including consultants, employees, directors or officers (or any warrantsAffiliates, options spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, distributees, descendants or other rights with respect to any shares estates of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (foregoing) so long as any Specified Event of Default does not exist at the foregoing prohibited acts referred to in clause (a)time of such redemption, (b) repurchase, retirement or (c) above other acquisition or in this clause (d) are herein collectively referred to as "Restricted Payments")retirement or value and would not exist after giving effect thereto; provided, howeverthat the amount of such redemption, that,
repurchases, retirement or other acquisition or retirement for value (enot including the amount of Capital Securities withheld from equity awards to satisfy tax withholding obligations) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount does not to exceed $250,000 500,000 in the aggregate in any Fiscal Year (provided, that any unused portion for any Fiscal Year may be carried forward to the immediately succeeding Fiscal Year); (d) redemption or repurchase on a cashless basis (by netting amounts owed under promissory notes owed to the Borrower) of the unvested portion of any award from any former service provider, including consultants, employees, directors or officers (iior any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, distributees, descendants or estates of the foregoing); provided, that the amount of any such redemptions or repurchases shall not exceed the lesser of (x) pay its taxes the amount previously paid by such Person to the Borrower to purchase such award and (iiiy) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making fair market value of such award at the time such award becomes eligible for redemption or repurchase by the Borrower; (e) Restricted Payment, Payments payable solely in the Capital Securities (Bother than Disqualified Capital Securities) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aBorrower;
Appears in 1 contract
Samples: Credit, Security and Guaranty Agreement (iRhythm Technologies, Inc.)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower No Credit Agreement Party will, nor will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to applyto, declare or pay any dividends (other than dividends payable solely in non-redeemable common stock or comparable common equity interests of Holdings or any such Subsidiary, as the case may be) or return any equity capital to, its fundsstockholders, partners, members or other equity holders or authorize or make any other distribution, payment or delivery of property or assets cash to the purchaseits stockholders, redemptionpartners, exchange, sinking fund members or other retirement ofequity holders as such, or agree redeem, retire, purchase or permit any of its Subsidiaries to purchaseotherwise acquire, redeem directly or exchangeindirectly, for a consideration, any shares of any class of Capital Stock (its capital stock or other Equity Interests, now or hereafter outstanding) outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares or other Equity Interests), or set aside any funds for any of the Borrowerforegoing purposes, warrants, options and no Credit Agreement Party will permit any of its Subsidiaries to purchase or other rights with respect to otherwise acquire for consideration any shares of any class of Capital Stock (the capital stock or other Equity Interests of Holdings or any other Subsidiary, as the case may be, now or hereafter outstandingoutstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock or other Equity Interests) (all of the Borrower;
(bforegoing "Dividends") the Borrower will not pay or otherwise reimburse (in cash, property or obligations) make any obligation arising under or payments in respect of the Seller Note and will not apply any outstanding Shareholder Subordinated Notes or permit any of its Subsidiaries to apply any of its fundsIntercompany Debt, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;except that:
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make (x) any payment Subsidiary of the U.S. Borrower may pay Dividends to the U.S. Borrower or prepayment any Wholly-Owned Subsidiary of principal of, the U.S. Borrower and (y) any non-Wholly-Owned Subsidiary of the U.S. Borrower may pay cash Dividends to its shareholders generally so long as the U.S. Borrower or make any payment of interest on, any Senior Note on any day other than its respective Subsidiary which owns the stated, scheduled date for such payment or prepayment set forth Equity Interest in the documents Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interests in the Subsidiary paying such Dividends and instruments memorializing such Senior Notetaking into account the relative preferences, or which would violate if any, of the subordination provisions various classes of Equity Interests of such Senior Note, Subsidiary); provided that any Dividend made pursuant to preceding clause (x) to any Wholly-Owned Subsidiary that is not a Credit Party may only be made if (A) (I) no Specified Default and no Event of Default then exists or would result therefrom and (II) such Wholly-Owned Subsidiary promptly distributes and/or transfer any Property received pursuant to such Dividend (directly or indirectly through other Wholly-Owned Subsidiaries) to a Credit Party or (ii) redeem, repurchase or defease any Senior Note; and
(dB) the Borrower will not, and will Subsidiary making such Dividend is not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments")a Credit Party; provided, provided however, that,
(e) , subject to Section 9.01(d)(v), any such Dividend may be made to the Bermuda Partnership notwithstanding the provisions existence of clause an Event of Default (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in other than an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iiiEvent of Default under Section 10.01 or 10.05) so long as (Aa) no Default shall have occurred the Bermuda Partnership complies with clause (II) of the preceding proviso and be continuing on (b) the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, Bermuda Partnership Partners are (B) after giving effect to the making receipt of such Restricted Payment the Borrower shall be any Dividend from Bermuda Partnership) in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) requirements of Section 7.1.1, and 9.01(d);
(Cii) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire Holdings may redeem or otherwise retire for value purchase shares of Capital Holdings Common Stock of Holdco or Preferred Stock of options to purchase Holdings Common Stock, as the Borrower case may be, held by directors, former officers or employees of Holdco or the Borrower Holdings or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon Subsidiaries following the death, disability, retirement, retirement or termination of employment of such officers or employees, provided that (w) the only consideration paid by Holdings in respect of such redemptions and/or purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, shall not exceed $2,000,000 in any Fiscal Year of Holdings, and (z) at the time of any redemption or purchase pursuant to the terms this Section 9.06(ii), no Specified Default or Event of such stock option plan Default shall then exist or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aresult therefrom;
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) Neither the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit nor any of its Subsidiaries to apply, will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests (exclusive of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstandingDebt Equivalents) of the Borrowersuch Person), warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;except that:
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment Wholly Owned Subsidiary of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "that is a Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to Subsidiary may make Restricted Payments to Holdco the Borrower or to any Wholly Owned Subsidiary of the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, Borrower that is a Restricted Subsidiary;
(ii) pay any non-Wholly Owned Subsidiary of the Borrower that is a Restricted Subsidiary may make Restricted Payments to the Borrower or to any Wholly Owned Subsidiary of the Borrower that is a Restricted Subsidiary or to its taxes and holders based on their relative ownership interests in its outstanding Equity Interests;
(iii) so long as (A) no Default shall have occurred and be continuing on or Event of Default is then in existence or would otherwise arise therefrom, the date such Restricted Payment is declared Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) or to be mademake payments on any notes issued to redeem such Equity Interests or Equity Equivalents from (I) officers, nor would a Default result from the making employees and directors of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its SubsidiariesRestricted Subsidiaries (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise, or options (II) other holders of Equity Interests or Equity Equivalents in the Borrower; provided that in all such cases (A) no Default or Event of Default is then in existence or would otherwise arise therefrom and (B) the aggregate amount of all cash paid in respect of all such shares so redeemed or repurchased and all such payments on any such shares notes does not exceed $10,000,000, and provided further that the Borrower may purchase, redeem or related otherwise acquire Equity Interests and Equity Equivalents of the Borrower pursuant to this clause (iii) without regard to the restrictions set forth in the first proviso above for consideration consisting of (x) unsecured Indebtedness of the Borrower permitted under Section 7.01(xiv) and (y) the proceeds of key man life insurance;
(iv) Restricted Payments made by exchange for, or out of the proceeds of, a substantially concurrent Equity Issuance or any cash capital contribution to the Company; provided, however, that the amount of Net Cash Proceeds from such Equity Issuance that is utilized for such Restricted Payment will not be included in calculating the Available Amount;
(v) the payment of any dividend or distribution, or the consummation of any irrevocable redemption, within 60 days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at such date of declaration or redemption notice such dividend, distribution or redemption, as the case may be, would have complied with this Section 7.07;
(vi) the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Capital Stock of the Borrower or any of its Restricted Subsidiaries not prohibited by this Agreement;
(vii) the Borrower and each of its Restricted Subsidiaries may make additional Restricted Payments using the Available Amount so long as the Available Amount Conditions have been met;
(viii) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock appreciation rights options or similar securities owned by warrants if such directors, officers Equity Interests represent a portion of the exercise price of such options or employees warrants;
(ix) redemptions in whole or their estates in part of beneficiaries under their estates), 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 cases only upon deathrespects material to their interests as those contained in the Equity Interests redeemed thereby;
(x) the Borrower may make Restricted Payments in the form of de minimis cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, disability, retirement, termination options or other securities convertible into or exchangeable for Equity Interests of employment or the Borrower; and
(xi) the Borrower and each of its Restricted Subsidiaries may make Restricted Payments in the ordinary course of business pursuant to any employee non-qualified deferred compensation plan maintained by the terms of such stock option plan Borrower or any other agreement under which such shares of Capital Stockits Restricted Subsidiaries for the benefit of current and former the officers, optionsemployees and directors of the Borrower or any of its Restricted Subsidiaries; and
(xii) in addition to the foregoing, related rights or similar securities were issued (collectively referred the Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount after the Closing Date not to as aexceed $15,000,000.
Appears in 1 contract
Samples: Credit Agreement (Medassets Inc)
Restricted Payments, etc. On and at all times after None of the date hereofGroup Companies will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) of such Person), except that:
(ai) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower may make Restricted Payments to the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower;
(bii) any non-Wholly-Owned Subsidiary of the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to may make Restricted Payments to Holdco the Borrower or to any Wholly-Owned Subsidiary of the extent necessary Borrower or ratably to enable Holdco to (i) pay all holders of its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and outstanding Equity Interests;
(iii) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the Borrower may make cash Restricted Payments to Holdings to enable Holdings to (I) make Restricted Payments to its parent to permit its parent to redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided that (A) no Default or Event of Default is then in existence or would otherwise arise therefrom and (B) the aggregate amount of all cash paid in respect of all such shares so redeemed or repurchased does not exceed $5,000,000 in the aggregate from and after the Closing Date, and provided further that Holdings may make a Restricted Payment to its parent so that its parent may purchase, redeem or otherwise acquire Equity Interests and Equity Equivalents of Holdings’ parent pursuant to this clause (iii) without regard to the restrictions set forth in the first proviso above for consideration consisting of (w) unsecured indebtedness of Holdings permitted under Section 7.01(xiv), (x) the proceeds of key man life insurance, (y) the Net Cash Proceeds of Equity Issuance of Qualified Capital Stock not required to be used to prepay the Loans or Cash Collateralize L/C Obligations in accordance with Section 2.09(c) or utilized to make Investments under Section 7.06(a)(xxv); and (II) pay amounts owed to any Seller under the Acquisition Agreement as described on Schedule A hereto;
(iv) the Borrower may make cash Restricted Payments to Holdings to enable Holdings to pay, and in amounts not to exceed the amount necessary to pay, (A) the then currently due fees and expenses of Holdings’ or its parents’ counsel, accountants and other advisors and consultants, reimbursements of fees and expenses of the Sponsor and other operating and administrative expenses of Holdings or its parent (including employee and compensation expenditures, directors’ and officers’ insurance premiums and other similar costs and expenses) incurred in the ordinary course of business that are for the benefit of, or are attributable to, or are related to, including the financing or refinancing of, Holdings’ Investment in the Borrower and its Subsidiaries, (B) the then currently due fees and expenses of Holdings’ or its parents’ independent directors in an aggregate amount not to exceed $2,000,000, plus any indemnities owed to such person, (C) amounts owing to any Seller under the Acquisition Agreement as described on Schedule A hereto, (D) amounts payable to any equity holder of Holdings or its parent under the limited liability company agreement of Holdings or its parent for the payment of taxes by such equity holders (or the indirect equity holders of Holdings) attributable to dividend income from the Borrower and (E) dividends, distributions or advances to Holdings or its Subsidiaries to be used by Holdings, its parent or its Subsidiaries to pay (i) federal, state and local taxes payable by Holdings, its parent or its Subsidiaries and directly attributable to (or arising as a result of) the operations of the Borrower and its Subsidiaries (other than Unrestricted Subsidiaries) and (ii) franchise taxes and other fees required to maintain its or its parents’ existence;
(v) payments or distributions pursuant to the Transaction Documents on the Closing Date;
(vi) redemption of stock deemed to occur upon the exercise of stock options or the purchase of stock issued to employees as part of a stock option plan, employee incentive plan or employee benefit plan;
(vii) dividend payments with respect to and the refinancing of Disqualified Stock;
(viii) the purchase of fractional shares by the Borrower upon conversion of any securities of the Borrower into Capital Stock of the Borrower;
(ix) distributions of Capital Stock of Unrestricted Subsidiaries; provided, however, that to the extent the Borrower or its Subsidiaries (other than Unrestricted Subsidiaries) has any outstanding Investment in such Unrestricted Subsidiary that is a permitted Investment, then the amount of such Investment at the time of such distribution shall be a Restricted Payment not permitted by this clause (ix); and
(x) so long as no Default or Event of Default shall have occurred and be continuing on or would result therefrom, Restricted Payments in an amount equal to the date such Restricted Payment is declared or to be made, nor would a Default result sum of (A) 25% of cumulative Excess Cash Flow from the making of such Restricted PaymentClosing Date but in no event to exceed $7,500,000 in any fiscal year, plus (B) after giving effect the Net Cash Proceeds from the issuance and sale of Qualified Capital Stock (excluding any Qualified Capital Stock used to the making cure an Event of such Restricted Payment the Borrower Default under Section 7.16 hereof); provided, however, that amounts available under this Section 7.07(x) shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered reduced by any amounts applied pursuant to clause (aSection 7.08(c) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as ahereof.
Appears in 1 contract
Restricted Payments, etc. On and at all times after None of the date hereofGroup Companies will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests or Equity Equivalents (exclusive of Disqualified Capital Stock) of such Person), except that:
(ai) any direct or indirect Wholly Owned Subsidiary of the Borrower will not declare, pay may make Restricted Payments to the Borrower or to any Wholly Owned Subsidiary of the Borrower;
(ii) any direct or indirect non-Wholly Owned Subsidiary of the Borrower may make Restricted Payments to the Borrower or to any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Wholly Owned Subsidiary of the Borrower or ratably to all holders of its outstanding Equity Interests or to any Subsidiary of the Borrower included in any consolidated, affiliated, combined or unitary group filing a Tax return with the Borrower or any Subsidiary of the Borrower, but only to the extent and in an amount necessary for such Subsidiary or, ultimately, the Borrower, to discharge any Tax liability attributable to such non-Wholly Owned Subsidiary;
(iii) the Borrower may make cash Restricted Payments solely to purchase, redeem, retire, acquire, cancel, terminate or repurchase Equity Interests (or Equity Equivalents) in the Borrower or to make payments on any warrantsnotes issued to redeem such Equity Interests or Equity Equivalents from (I) present or former officers, options employees, directors, managers or other rights with respect to any shares consultants of any class Group Company (or their estates, spouses or former spouses, other immediate family members, estate planning vehicles, successors, executors, administrators, heirs, legatees or distributees of Capital Stock any of the foregoing) following the death, permanent disability, retirement or termination of employment of any such Person or otherwise or (now II) so long as no Default or hereafter outstandingEvent of Default has occurred and is continuing or would result therefrom, other holders of Equity Interests or Equity Equivalents in the Borrower; provided that in all such cases the aggregate amount of all cash paid in respect of all such Equity Interests (and Equity Equivalents) so redeemed or repurchased and all such payments on any such notes pursuant to this clause (iii) does not exceed $2,000,000 in any fiscal year of the Borrower;
(iv) any Group Company may make additional Restricted Payments in an aggregate amount during the term of this Agreement not exceeding the amount of Net Cash Proceeds received during the term of this Agreement from any substantially contemporaneous Equity Issuance of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications an Equity Issuance of its stock into additional or other shares of its common stockDisqualified Capital Stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets Not Otherwise Applied immediately prior to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) time of the Borrower, making of such Restricted Payment so long as no Default or Event of Default then exists or would be caused thereby;
(v) the Borrower may make cash Restricted Payments constituting de minimis cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other rights securities convertible into or exchangeable for Equity Interests of the Borrower or in connection with any dividend, split or combination of Equity Interests or a Permitted Acquisition;
(vi) to the extent constituting Restricted Payments, the Group Companies may enter into and consummate transactions expressly permitted by Section 7.04, Section 7.05 or Section 7.06 (in each case, other than by reference to this Section 7.07);
(vii) the Group Companies may pay dividends or distributions within thirty (30) days of the date of declaration thereof, if at the date of declaration thereof such payment would have complied with the provisions of this Agreement;
(viii) to the extent constituting Restricted Payments, the Group Companies may pay contingent liabilities in respect to any shares of any class adjustment of Capital Stock purchase price, earn-outs, deferred compensation and similar obligations of the Borrower and its Subsidiaries incurred in connection with Permitted Acquisitions, Permitted Joint Ventures, Investments permitted by Section 7.06 and Asset Dispositions;
(now ix) repurchases of Equity Interests in the Borrower or hereafter outstandingany Subsidiary of the Borrower deemed to occur upon the exercise of stock options or warrants may be made if such Equity Interests represent a portion of the exercise price of such options or warrants;
(x) the Borrower may (a) accept Equity Interests in the Borrower to satisfy the withholding tax obligations of the holder of such Equity Interests upon settlement of such Equity Interests or (b) effect a net settlement of Equity Interests in the Borrower upon the exercise of such Equity Interests to cover the exercise price or tax withholding of such Equity Interests, in each case in an aggregate amount not to exceed $2,000,000 in any fiscal year of the Borrower;
(bxi) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) may effectuate any obligation arising under or in respect conversion of the Seller Note and will not apply or permit any Unsecured Notes in accordance with the indenture related thereto, including, for the avoidance of its Subsidiaries to apply any doubt, the making of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Notecash payments in connection therewith;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iiixii) so long as (A) no Event of Default shall have has occurred and be is continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, therefrom and (B) both before and after giving effect to the making of thereof, the Total Leverage Ratio, determined on a Pro Forma Basis shall not exceed 6.00:1.00, additional Restricted Payments in an aggregate amount not to exceed the Available Amount at such Restricted Payment time; and
(xiii) the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 Group Companies may distribute (for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (ano consideration) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock Equity Interests of the Borrower held by directors, officers or employees them as of Holdco or the Closing Date to the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to any other Group Company to effect such distribution to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aBorrower).
Appears in 1 contract
Samples: Credit Agreement (Teladoc, Inc.)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the The Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a)Restricted Payment, (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, except that,:
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) (x) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower (including by way of conversion of intercompany payables) and (y) any Non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its overhead expenses shareholders generally, so long as the Borrower or its respective Subsidiary which owns the equity interest in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the equity interests in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of equity interests of such Subsidiary);
(ii) the Borrower may redeem or repurchase shares of Borrower Common Stock (or options, warrants and/or appreciation rights in respect thereof) from shareholders, officers, employees, consultants and directors (or their estates) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise in accordance with any shareholder agreement, stock option plan or any employee stock ownership plan; provided that (x) no Default or Event of Default is then in existence or would arise therefrom and (y) the aggregate amount of all cash paid in respect of all such shares, options, warrants and rights so redeemed or repurchased in any calendar year, does not exceed $5,000,000;
(iii) the Borrower may declare and pay Dividends to the holders of Borrower Common Stock (including by way of the repurchase of outstanding shares of Borrower Common Stock) in an amount not to exceed $250,000 in the aggregate in any Fiscal Yearamount of Cumulative Distributable Cash (determined as of the Dividend Calculation Date), (ii) pay its taxes and (iii) so long as with respect to the declaration and payment of Dividends (other than Excluded Dividend Payments) (A) no Default shall have occurred and be continuing on the date such Restricted Payment or Event of Default is declared then in existence or to be made, nor would a Default result from the making of such Restricted Paymentexist immediately after giving effect thereto, (B) no Dividend Suspension Period is then in effect, (C) the Minimum Liquidity Condition is satisfied at such time (before and after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (arespective Dividend) or clause (b) of Section 7.1.1, and (CD) an Authorized Officer of the Borrower shall have delivered an officer’s certificate on the date of the proposed Dividend certifying that the Cumulative Distributable Cash on such date (after giving effect to all prior and contemporaneous adjustments thereto, except as a certificate result of such Dividend) exceeds the aggregate amount of the proposed Dividend;
(iv) subject to the Agents subordination provisions of the respective agreements governing the respective issuance of Permitted Unsecured Debt and so long as no Default or Event of Default then exists or would result therefrom, the Borrower may pay regularly scheduled interest on each issuance of Permitted Unsecured Debt through the issuance of Permitted Unsecured Debt (but not in form cash) as and substance satisfactory when due in accordance with the terms of the instruments and agreements governing the respective Permitted Unsecured Debt;
(v) Indebtedness may be refinanced with the proceeds of Permitted Refinancing Indebtedness in accordance with the requirements of the definition thereof, so long as no Default or Event of Default is in existence at the time of the incurrence of such Permitted Refinancing Indebtedness and immediately after giving effect thereto;
(vi) the Transaction shall be permitted to be consummated in accordance with the Merger Agreement, the Distribution Agreement and the relevant requirements of this Agreement;
(vii) the Borrower and its Subsidiaries may make payments with respect to Intercompany Debt, so long as the respective payment is permitted to be made in accordance with the terms of the Intercompany Subordination Agreement (giving effect to the Agents exceptions required by applicable regulatory law as contemplated thereby);
(including a calculation viii) so long as no Default or Event of Default exists or would result therefrom, the Borrower may pay regularly accruing Dividends on its Disqualified Preferred Stock issued pursuant to Section 7.13(d) in cash and/or through the issuance of additional shares of Disqualified Preferred Stock in accordance with the terms of the compliance documentation governing the same;
(ix) the Borrower may pay regularly accruing Dividends with respect to Qualified Preferred Stock through the issuance of additional shares of Qualified Preferred Stock (but not in cash) in accordance with the covenants set forth in Section 7.2.4terms of the documentation governing the same;
(x) certifying as the Borrower and each of its Subsidiaries may pay Dividends to the accuracy Borrower and its Subsidiaries, as applicable, in accordance with tax sharing arrangements entered into among the Borrower and its Subsidiaries;
(xi) Existing 2010 Senior Notes not repurchased in connection with the Tender Offer and Consent Solicitation therefor may from time to time be redeemed in accordance with the terms of clauses the respective indenture therefor and/or repurchased on the open-market, so long as (e)(iii)(AI) the aggregate amount of cash expended by the Borrower to effect such repurchases or redemptions shall not exceed the sum of (A) the principal amount of the Indebtedness so repurchased or redeemed plus (B) the amount of accrued but unpaid interest on the Indebtedness so repurchased or redeemed through the respective date of repurchase or redemption plus (C) any required premium payable in connection with such repurchase or redemption, (II) no Default or Event of Default then exists or would result therefrom (or, in the case of any redemption of Existing 2010 Senior Notes pursuant to the Existing 2010 Senior Notes Indenture, no Default or Event of Default under Section 8.01 or 8.05 then exists or would result therefrom), (III) all such Existing 2010 Senior Notes so repurchased or redeemed are promptly cancelled by the purchaser thereof, and (e)(iii)(BIV) aboveat the time of any delivery of an irrevocable notice of redemption pursuant to the Existing 2010 Senior Notes Indenture, purchaseno Default or Event of Default then exists;
(xii) the Borrower may redeem or repurchase shares of Sunflower Telephone Company, redeemInc. held by third-party investors, acquire so long as (x) no Default or Event of Default then exists or would exist immediately after giving effect thereto and (y) the aggregate amount of all cash paid in respect of all redemptions and/or repurchases pursuant to this clause (xii) does not exceed $250,000;
(xiii) the Borrower may make purchases of fractional shares of Borrower Common Stock arising out of stock dividends, splits or combinations or business combinations;
(xiv) the Borrower may redeem shares of Qualified Preferred Stock or Disqualified Preferred Stock or repurchase or refinance any Permitted Unsecured Debt with the proceeds of any issuance of Permitted Junior Capital not required to be applied to repay Term Loans pursuant to Section 3.03(A)(c);
(xv) the Borrower may pay, redeem or repurchase Permitted Junior Capital issued pursuant to Section 7.04(p) at any time, so long as at the time of such payment, redemption or repurchase, the Leverage Ratio is less than 4.50:1.00; and
(xvi) the Borrower may pay consent or similar fees related to amendments to the indenture governing the Spinco Senior Notes; provided that, notwithstanding clause (iii) of this Section 7.09(a), regular quarterly Dividends to the holders of Borrower Common Stock (by way of cash payment and not including the repurchase of outstanding shares of Borrower Common Stock) payable for the fiscal quarter in which the Closing Date occurs and the first and second full fiscal quarters following the Closing Date, consistent with past practices, shall be permitted so long as the amount of such Dividends does not to exceed $50,000,000 in the aggregate (the “Excluded Dividend Payments”); provided, further that the per share dividend amount payable by the Borrower (after taking into account any stock split or stock dividend) may not be increased except during an Applicable Leverage Ratio Period.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, create or otherwise retire for value shares cause or suffer to exist (other than as a result of Capital Stock a requirement of Holdco law) any encumbrance or Preferred Stock restriction which prohibits or otherwise restricts (A) the ability of the Borrower held by directors, officers any Subsidiary to (a) pay dividends or employees of Holdco make other distributions or pay any Indebtedness owed to the Borrower or any Subsidiary, (b) make loans or advances to the Borrower or any Subsidiary, (c) transfer any of its properties or assets to the Borrower or any Subsidiary or (B) the ability of any Subsidiary to create, incur, assume or suffer to exist any Lien upon its property or assets to secure the Obligations, other than (for purposes of clauses (A) and (B)) prohibitions or restrictions existing under or by reason of: (i) this Agreement and the other Credit Documents; (ii) law, order, regulation, or ruling applicable to the Borrower or such Subsidiary; (iii) customary non-assignment provisions entered into in the ordinary course of business and consistent with past practices; (iv) any restriction or encumbrance with respect to a Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition of all or substantially all of the capita1 stock or assets of such Subsidiary, so long as such sale or disposition is permitted under this Agreement; (v) Liens permitted under Sections 7.03(d), (m) and/or (n) and any documents or instruments governing the terms of any Indebtedness or other obligations secured by any such Liens; provided that such prohibitions or restrictions apply only to the assets subject to such Liens; (vi) any agreement or instrument governing Permitted Acquired Debt, to the extent such restriction or encumbrance (x) is not applicable to any Person or the properties or assets of any Person (other than the Person or the properties or assets of the Person acquired pursuant to the respective Permitted Acquisition) and (y) was not created (or made more restrictive) in connection with or in anticipation of the respective Permitted Acquisition; (vii) restrictions applicable to any Non-Wholly Owned Subsidiary existing at the time of the acquisition thereof as a result of an Investment pursuant to Section 7.06 or a Permitted Acquisition effected in accordance with Section 6.10; provided that the restrictions applicable to such joint venture are not made more burdensome, from the perspective of the Borrower and its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), than those as in all cases only upon death, disability, retirement, termination of employment or pursuant effect immediately before giving effect to the terms consummation of such stock option plan the respective Investment or Permitted Acquisition; and (viii) on and after the execution and delivery thereof, any other agreement under which such shares of Capital Stock, options, related rights agreements or similar securities were issued (collectively referred instruments relating to as aany Permitted Unsecured Debt.
Appears in 1 contract
Restricted Payments, etc. On None of the Group Companies will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests or Equity Equivalents (exclusive of Debt Equivalents and at all times after the date hereofDisqualified Capital Stock) of such Person), except that:
(ai) any direct or indirect Wholly Owned Subsidiary of the Borrower will not declare, pay may make Restricted Payments to the Borrower or to any Wholly Owned Subsidiary of the Borrower;
(ii) any direct or indirect non-Wholly Owned Subsidiary of the Borrower may make Restricted Payments to the Borrower or to any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Wholly Owned Subsidiary of the Borrower or ratably to all holders of its outstanding Equity Interests or to any Subsidiary of the Borrower included in any consolidated, affiliated, combined or unitary group filing a Tax return with the Borrower or any Subsidiary of the Borrower, but only to the extent and in an amount necessary for such Subsidiary or, ultimately, the Borrower, to discharge any Tax liability attributable to such non-Wholly Owned Subsidiary;
(iii) the Borrower may make cash Restricted Payments solely to purchase, redeem, retire, acquire, cancel, terminate or repurchase Equity Interests (or Equity Equivalents) in the Borrower or to make payments on any warrantsnotes issued to redeem such Equity Interests or Equity Equivalents from (I) present or former officers, options employees, directors, managers or other rights with respect to any shares consultants of any class Group Company (or their estates, spouses or former spouses, other immediate family members, estate planning vehicles, successors, executors, administrators, heirs, legatees or distributees of Capital Stock any of the foregoing) following the death, permanent disability, retirement or termination of employment of any such Person or otherwise or (now II) so long as no Default or hereafter outstandingEvent of Default has occurred and is continuing or would result therefrom, other holders of Equity Interests or Equity Equivalents in the Borrower; provided that in all such cases the aggregate amount of all cash paid in respect of all such Equity Interests (and Equity Equivalents) so redeemed or repurchased and all such payments on any such notes pursuant to this clause (iii) does not exceed […***…] in any fiscal year of the Borrower;
(iv) any Group Company may make additional Restricted Payments in an aggregate amount during the term of this Agreement not exceeding the amount of Net Cash Proceeds received from any substantially contemporaneous Equity Issuance of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications an Equity Issuance of its stock into additional or other shares of its common stockDisqualified Capital Stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets Not Otherwise Applied immediately prior to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any time of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment so long as no Default or Event of Default then exists or would be caused thereby;
(v) the Borrower shall be may make cash Restricted Payments constituting de minimis cash payments in pro forma compliance lieu of the issuance of fractional shares in connection with the covenants set forth exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Borrower or in connection with any dividend, split or combination of Equity Interests or a Permitted Acquisition;
(vi) to the extent constituting Restricted Payments, the Group Companies may enter into and consummate transactions expressly permitted by Section 7.2.4 for 7.04, Section 7.05 or Section 7.06 (in each case, other than by reference to this Section 7.07);
(vii) the most recent full Fiscal Quarter immediately preceding Group Companies may pay dividends or distributions within thirty (30) days of the date of declaration thereof, if at the date of declaration thereof such payment would have complied with the provisions of this Agreement;
(viii) to the extent constituting Restricted Payments, the Group Companies may pay contingent liabilities in respect of any adjustment of purchase price, earn-outs, deferred compensation and similar obligations of the Borrower and its Subsidiaries incurred in connection with Permitted Acquisitions, Permitted Joint Ventures, Investments permitted by Section 7.06 and Asset Dispositions;
(ix) repurchases of Equity Interests in the Borrower or any Subsidiary of the Borrower deemed to occur upon the exercise of stock options or warrants may be made if such Equity Interests represent a portion of the exercise price of such Restricted Payment for which options or warrants;
(x) the relevant financial information has been delivered pursuant to clause Borrower may (a) accept Equity Interests in the Borrower to satisfy the withholding tax obligations of the holder of such Equity Interests upon settlement of such Equity Interests or clause (b) effect a net settlement of Section 7.1.1Equity Interests in the Borrower upon the exercise of such Equity Interests to cover the exercise price or tax withholding of such Equity Interests, and (C) in each case in an Authorized Officer aggregate amount not to exceed […***…] in any fiscal year of the Borrower shall have delivered a certificate to Borrower; and
(xi) the Agents in form and substance satisfactory to the Agents Group Companies may distribute (including a calculation of the compliance with the covenants set forth in Section 7.2.4for no consideration) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock Equity Interests of the Borrower held by directors, officers or employees them as of Holdco or the Closing Date to the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to any other Group Company to effect such distribution to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aBorrower).
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the The Borrower will not, and will not permit any of its Restricted Subsidiaries to, (i) declare or make any payment or prepayment of principal ofa Restricted Payment, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any Restricted Payment, other than Restricted Payments made by Restricted Subsidiaries to the Borrower or other Restricted Subsidiaries; provided, however, that, notwithstanding any of the foregoing purposes foregoing, the Borrower may, without duplication,
(a) repurchase, redeem, or otherwise retire for value any shares of its Capital Stock (together with options or warrants in respect of any thereof) held by officers, directors and employees of the Borrower (or any of their respective estates or beneficiaries under such estates), in all cases upon the death, disability, retirement or termination of employment of such Persons, pursuant to a mandatory repurchase or redemption provision under the terms of the stock option plan, stock subscription agreement, shareholder agreement or other agreement under which such shares of Capital Stock (and options or warrants in respect of any thereof) were issued; provided, that the aggregate consideration paid for such repurchase, redemption or other retirement for value of such shares of its Capital Stock (together with options or warrants in respect of any thereof) shall not exceed $2,000,000 over the term of this Agreement;
(b) redeem, defease or otherwise prepay or retire the Subordinated Notes, including, without limitation, the consummation of a Qualified Subordinated Note Redemption; provided, that, except in the case of a Qualified Subordinated Note Redemption, (1) at the time of any such redemption, defeasance, prepayment or retirement, the Leverage Ratio is less than or equal to 3.50:1.00 and the Senior Leverage Ratio is less than or equal to 3.00:1.00, in each case calculated based upon the Leverage Ratio and Senior Leverage Ratio set forth in the Compliance Certificate then most recently delivered by the Borrower to the Administrative Agent pursuant to Section 7.1.1(c), and (2) the total aggregate amount of Restricted Payments made after the Effective Date pursuant to this clause (b) and pursuant to clause (c) of this section, after giving effect to such redemption, defeasance, prepayment or retirement, does not exceed 5% of Net Worth at the time of such redemption, defeasance, prepayment or retirement; and
(c) declare, pay and make Restricted Payments consisting of dividends or redemptions with respect to the Borrower's Capital Stock, in addition to those permitted by the foregoing prohibited acts referred clause (a) of this section; provided, that, (1) at the time of any such Restricted Payment, the Leverage Ratio is less than or equal to 3.50:1.00, calculated based upon the Leverage Ratio set forth in the Compliance Certificate then most recently delivered by the Borrower to the Administrative Agent pursuant to Section 7.1.1(c), and (2) the total aggregate amount of Restricted Payments made after the Effective Date pursuant to this clause (c) and pursuant to clause (b) of this section (other than a Qualified Subordinated Note Redemption) after giving effect to such Restricted Payment, does not exceed 5% of Net Worth at the time of the making of such Restricted Payment; provided further, however, that
(i) the Borrower may make any Restricted Payment permitted pursuant to clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) only so long as (A) both before and after giving effect to any such Restricted Payment, no Default shall have occurred and be continuing on continuing, and
(ii) in the date such case of any Restricted Payment is declared otherwise permitted pursuant to clause (b) or to be made(c) above, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in have delivered to the Administrative Agent (A) financial statements prepared on a pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of basis to give effect to such Restricted Payment for the period of four consecutive Fiscal Quarters ending with the Fiscal Quarter then last ended for which financial statements and the relevant financial information has Compliance Certificate relating thereto have been delivered to the Administrative Agent pursuant to clause (a) or clause (b) of Section 7.1.1, 7.1.1 and (CB) a certificate of the Borrower executed by an Authorized Officer of the Borrower shall have delivered a certificate to demonstrating that the Agents financial results reflected in form and substance satisfactory to the Agents (including a calculation of the compliance such financial statements would comply with the covenants set forth requirements of Section 7.2.4 for the Fiscal Quarter in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred Restricted Payment is to as abe made.
Appears in 1 contract
Samples: Credit Agreement (Stericycle Inc)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower Each Credit Party will not, and will not permit any of its Subsidiaries toSubsidiaries, (i) to make any payment or prepayment of principal ofRestricted Payment, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any Restricted Payment, other than:
(a) cash payments to the Borrower, Holdings, Grindr Group and/or to HoldingsGrindr ListCo to be used (i) for Tax Distributions, (ii) to pay (or to make Restricted Payments to any direct or indirect parent of HoldingsGrindr ListCo to pay) franchise and similar taxes of HoldingsGrindr ListCo, San Xxxxxxx Holdings, LLC or any entity affiliated with San Xxxxxxx Holdings, LLC, in each case, formed solely for the foregoing purposes purpose of directly or indirectly holding the equity of HoldingsGrindr ListCo, provided that such entities may engage in the activities contemplated by Section 8.22, and (the foregoing prohibited acts referred iii) to in pay (or to make Restricted Payments to any direct or indirect parent of HoldingsGrindr ListCo to pay) taxes imposed on any distributions permitted by this clause (a), ;
(b) payments by any Subsidiary of any Credit Party to its direct parent (other than Grindr ListCo, Grindr Group and Holdings) so long as such parent is (i) a direct or indirect Wholly- Owned Subsidiary of any Credit Party, (ii) the Borrower or (iii) a direct parent (other than Grindr ListCo, Grindr Group and Holdings or a direct or indirect parent of Grindr ListCo, Grindr Group and Holdings) of a non-Wholly-Owned Subsidiary, in which case such payment shall be made pro rata to such parent based on its relative ownership interests in the class of equity receiving such Restricted Payment;
(c) above Restricted Payments by any Credit Party or any of its Subsidiaries to pay dividends with respect to its Capital Stock payable solely in additional shares of its Capital Stock (other than Disqualified Capital Stock);
(d) Restricted Payments to repurchase, redeem or otherwise acquire or retire for value any Capital Stock of Holdings, any direct or indirect parent of Holdings or its Subsidiaries held by any current or former employee, director, consultant or officer (or their transferees, spouses, ex-spouses, estates or beneficiaries under their estates) of any Credit Party or Subsidiary of any Credit Party pursuant to any employee equity subscription agreement, equity option agreement or equity ownership arrangement, including upon the death, disability, retirement, severance or termination of employment or service of such Persons to the extent (i) not exceeding $1,000,000 in the aggregate during any fiscal year and (ii) both before and after giving effect to any such payment, no Specified Event of Default or Financial Covenant or Financial Reporting Event of Default exists or would immediately thereafter occur as a result thereof; provided that to the extent any amounts remain unused under subclause (i) of this clause (d) are herein collectively referred in a given fiscal year of HoldingsGrindr ListCo may be carried forward and made in the immediately succeeding fiscal year of HoldingsGrindr ListCo without regard to as "Restricted Payments"); provided, however, that,any caps set forth herein;
(e) notwithstanding no earlier than 91 days after the provisions date the Bridge Amortization payment has been made (together with the Applicable Prepayment Premium), Restricted Payments in an aggregate amount not to exceed 125% of clause the Deferred Purchase Price so long as (aw) abovethe amount of such Restricted Payments shall not exceed the amount necessary (after taking into account minority interests) to pay the Deferred Purchase Price, (x) the Borrower Total Leverage Ratio (calculated on a Pro Forma Basis) does not exceed 2.50:1.00, (y) pro forma Consolidated Liquidity is no less than $10,000,000 and (z) no Event of Default shall have occurred and be permitted continuing or would result therefrom;
(f) Restricted Payments to Holdings, Grindr Group or Grindr ListCo to pay (or to make Restricted Payments to Holdco any direct or indirect parent of Holdings, Grindr Group or Grindr ListCo, as applicable, to pay) administrative, regulatory, accounting, auditing, directors, insurance and other ordinary course of business fees and expenses of Holdings, Grindr Group, Grindr ListCo or any direct or indirect parent of Holdings, Grindr Group or Grindr ListCo (to the extent necessary solely attributable to enable Holdco ownership of Holdings, Grindr Group or Grindr ListCo, as applicable), not to exceed $1,000,000 per fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed;
(g) Restricted Payments on or within one hundred and eighty (180) days after the Closing Date for the payment of out-of-pocket legal and accounting fees, costs and expenses in connection with the Transactions subject to delivery of invoices to the Administrative Agent promptly following the Closing Date;
(h) Restricted Payments to Holdings to pay (or to make Restricted Payments to any direct or indirect parent of Holdings to pay) the Aggregate Estimated Adjustment Amount and the difference (if positive) between the Aggregate Final Adjustment Amount and the Aggregate Estimated Adjustment Amount (each as defined in the Acquisition Agreement);
(i) Restricted Payments to pay its overhead monitoring, consulting, management, transaction, advisory, termination or similar fees (including termination fees, related indemnities and expense and any other fees and expenses paid or payable to or for the benefit of the Sponsor, any direct or indirect equity holder of Holdings or any Affiliate of the Sponsor or such equity holder) (which fees and expenses may be paid in the form of dividends) payable to the Sponsor, any direct or indirect equity holder of Holdings or any Affiliate of the Sponsor or such equity holder, in each case, subject to the Service Agreement in an amount not to exceed $250,000 2,000,000 in the aggregate in any Fiscal Yearper fiscal year; provided, (ii) pay its taxes and (iii) so long as (A) that, no Event of Default shall have occurred and be continuing on the date or would result from such Restricted Payment is declared Payment;
(j) to the extent constituting Restricted Payments, payments of Indebtedness permitted pursuant to Section 10.13;
(k) Restricted Payments to Holdings, Grindr Group or Grindr ListCo (or a direct or indirect parent of Holdings, Grindr Group or Grindr ListCo, as applicable) to pay taxes imposed on Holdings, Grindr Group or Grindr ListCo (or a direct or indirect parent of Holdings, Grindr Group or Grindr ListCo, as applicable) relating to the vesting of stock-based awards consistent with past practice; and
(l) Restricted Payments with the proceeds of the 2022-I Supplemental DDTLs and/or the 2022-II Supplemental DDTLs to part-finance distributions from Grindr Group LLC of $2.55 per Series X Ordinary Unit of Grindr Group LLC, in an aggregate amount not to exceed $286,686,685, which will (in the case of distributions received by any Subsidiary of San Xxxxxxx Holdings LLC) be madeused solely to (without duplication) satisfy the Deferred Purchase Price and make payments in connection with the deSPAC Transactions (including any pre-merger restructuring steps), nor would a Default result from provided that, at the making time of such Restricted PaymentPayments, (Bx) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date San Xxxxxxx Group Holdings LLC owns at least 88% of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, issued and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form outstanding voting and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of economic Capital Stock of Holdco Grindr Group LLC and (y) San Xxxxxxx Group TopCo LLC will directly or Preferred Stock indirectly receive not less than 100% of the Borrower held distributions made by directorsSan Xxxxxxx Group Holdings LLC. Notwithstanding the foregoing, officers or employees of Holdco or the Borrower no COVID-19 Proceeds received by any Credit Party or any of its Subsidiaries, their respective Subsidiaries shall be used directly or options on indirectly to make any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aRestricted Payments.
Appears in 1 contract
Samples: Credit Agreement (Grindr Inc.)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the The Borrower will not, and will not permit any of its Subsidiaries to, (i) declare or make any payment or prepayment of principal ofa Restricted Payment, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any Restricted Payment, other than
(i) Restricted Payments made by wholly-owned Subsidiaries to the Borrower or wholly-owned Subsidiaries and (ii) Restricted Payments made by non-wholly-owned Subsidiaries to its shareholders or members generally so long as the Borrower or its Subsidiary which owns the equity interest in the Subsidiary making such Restricted Payment receives at least its proportionate share thereof (based upon its relative holding of the foregoing purposes (equity interests in the foregoing prohibited acts referred to in clause (aSubsidiary making such Restricted Payment), ;
(b) the declaration or payment by the Borrower of a cash dividend on, or on account of, any class of Capital Securities of the Borrower (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"including Designated Preferred Stock); providedprovided that prior to such declaration or payment, however, that,
(e) notwithstanding the provisions an Authorized Officer of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco have certified in writing to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as (A) Administrative Agent that no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, therefrom;
(Bc) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for any dividends the declaration of which the relevant financial information has been delivered was permitted pursuant to clause (a) or the immediately preceding clause (b), so long as such payment is made within 60 days of such declaration or on its regularly schedule payment date;
(d) the redemption, purchase or other acquisition by the Borrower of Section 7.1.1its Series B Preferred Stock and, and (C) concurrent with any such redemption, the payment of accrued dividends thereon; provided that prior to such redemption, purchase or other acquisition or payment of accrued dividends, an Authorized Officer of the Borrower shall have delivered a certificate certified in writing to the Agents in form Administrative Agent that no Default shall have occurred and substance satisfactory to be continuing or would result therefrom;
(e) the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) aboveredemption, purchase, redeem, acquire purchase or otherwise retire for value shares other acquisition of Capital Stock of Holdco or Preferred Stock Securities of the Borrower held by directorsin exchange for, officers or employees with the net cash proceeds of, the substantially concurrent sale (other than to a Subsidiary of Holdco the Borrower) of Capital Securities (other than Redeemable Capital Securities and Designated Preferred Stock) of the Borrower; provided that prior to such redemption, purchase or other acquisition, an Authorized Officer of the Borrower shall have certified in writing to the Administrative Agent that immediately before and after giving effect to such redemption, purchase or any other acquisition no Default shall have occurred and be continuing or would result therefrom; and
(f) the redemption, purchase or other acquisition of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or Capital Securities pursuant to the terms Small Lot Repurchase Program; provided that prior to such redemption, purchase or other acquisition, an Authorized Officer of the Borrower shall have certified in writing to the Administrative Agent that immediately before and after giving effect to such stock option plan redemption, purchase or any other agreement under which such shares of Capital Stock, options, related rights acquisition no Default shall have occurred and be continuing or similar securities were issued (collectively referred to as awould result therefrom.
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will notNo Credit Party shall, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not no Credit Party shall permit any of its Subsidiaries to, make any Restricted Payment, or make any deposit for any Restricted Payment, other than:
(a) payments by any Subsidiary of a Borrower to such Borrower or its direct parent (and, in the case of a Restricted Payment by a non-wholly owned Subsidiary, to a Borrower and any other Subsidiaries and to each other owner of Capital Stock of such Subsidiary based on their relative ownership interests of the foregoing purposes (the foregoing prohibited acts referred to in clause (arelevant class of Capital Stock), ;
(b) Restricted Payments by any Credit Party or any of its Subsidiaries to pay dividends with respect to its Capital Stock payable solely in additional shares of its common stock (other than Disqualified Capital Stock);
(c) above Restricted Payments by any Credit Party or in this clause any of its Subsidiaries to Parent to enable Parent to pay any applicable income or franchise Taxes then due and payable, to the extent such Taxes are attributable to the activities or income of the Borrowers and its Subsidiaries;
(d) are herein collectively referred regularly scheduled, nonaccelerated payments with respect to as "Restricted Payments"); providedIndebtedness subordinated to the Obligations (including, howeverwithout limitation, that,seller notes and earnout obligations) to the extent expressly permitted by the applicable subordination agreement or such other subordination terms with respect thereto;
(e) notwithstanding the provisions 2024 Convertible Notes Repurchase on the maturity date (as set forth in the 2024 Convertible Notes);
(f) redemptions, repurchases, retirements or other acquisitions of Capital Stock (i) deemed to occur on the exercise of options by the delivery of Capital Stock in satisfaction of the exercise price of such options or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management, or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options; provided, that, any Restricted Payments made pursuant to this clause (af) above, are not be made in cash;
(g) conversion of the Borrower shall be permitted to make Restricted Payments to Holdco 2024 Convertible Notes and/or the 2025 Convertible Notes into Qualified Capital Stock of Parent in accordance with the terms thereof;
(h) all mandatory or scheduled payments in respect of the Convertible Senior Notes;
(i) payment and/or satisfaction of the Existing Earnouts (whether by way of cash payments or issuance of Capital Stock of the Parent);
(j) the 2025 Convertible Notes Repurchase on the maturity date (as set forth in the 2025 Convertible Notes);
(k) to the extent necessary to enable Holdco to no Event of Default has occurred and is continuing at the time of such distribution (i) pay both before and after giving effect thereto), any Credit Party and any of its overhead expenses Subsidiaries may make distributions in an amount not sufficient to exceed $250,000 make payments (with cash or Shareholder Redemption Notes) on account of the purchase, redemption, or other acquisition or retirement of any shares of the Capital Stock of a Credit Party or Subsidiary from former employees, officers, or directors of the Credit Parties and their Subsidiaries (or any spouses, ex-spouses, beneficiaries or estates of any of the foregoing) which may be in the aggregate form of forgiveness of Indebtedness, and Parent may make such payments (with cash or Shareholder Redemption Notes) on account of the purchase, redemption, or other acquisition or retirement of any shares of its Capital Stock, and, in each case, make distributions to satisfy any tax liabilities arising in connection with such transactions; provided that the amount of such distributions and repurchases (including any such distributions or repurchases in the form of forgiveness of Indebtedness) may not exceed the sum of (x) $2,000,000 in any Fiscal Year plus (y) the amount of the cash proceeds of any permitted issuance of Qualified Capital Stock received by the Parent or Evolent for the purpose of making such payments and used solely for such purpose plus (z) key man life insurance proceeds received by the Parent, Borrowers or any of their respective Subsidiaries during such Fiscal Year, ;
(iil) pay its taxes and [reserved];
(iiim) so long as (A) no Default shall have occurred and be continuing on the making of any Restricted Payment within 60 days after the date of declaration thereof, if at the date of such declaration such Restricted Payment is declared or to be made, nor would a Default result from the making have complied with another provision of such Restricted Payment, (B) after giving effect to this Section 9.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made;
(n) to the Borrower shall be in pro forma compliance with extent constituting Restricted Payments, the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date consummation of the payment Transactions;
(i) the redemption, repurchase, retirement or other acquisition of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause any Capital Stock (a) or clause (b“Retired Capital Stock”) of Section 7.1.1Parent in exchange for, and (C) an Authorized Officer or out of the Borrower shall have delivered a certificate proceeds of, the substantially concurrent sale of, Capital Stock of Parent or contributions to the Agents in form and substance satisfactory to the Agents equity capital of Parent (other than any Disqualified Capital Stock) (collectively, including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(Aany such contributions, “Refunding Capital Stock”) and (e)(iii)(Bii) above, purchase, redeem, acquire or otherwise retire for value shares the declaration and payment of dividends on the Retired Capital Stock of Holdco or Preferred Stock out of the Borrower held proceeds of the substantially concurrent sale of Refunding Capital Stock;
(p) the Parent and its Subsidiaries may make any payments required by directors, officers or employees the terms of Holdco or the Borrower TRA;
(q) the Parent or any of the Subsidiaries may pay cash in lieu of fractional Capital Stock in connection with any dividend, split or combination thereof, any Permitted Acquisition or any exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock;
(r) to the extent no Event of Default has occurred or is continuing and to the extent not prohibited by the applicable subordination provisions applicable thereto, the Parent and its SubsidiariesSubsidiaries may pay earn-outs, or options on any such shares or related stock appreciation rights seller notes, deferred purchase price obligations, holdbacks or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or obligations that were incurred pursuant to Section 9.01(x);
(s) to the terms extent constituting Restricted Payments, the Borrowers and their respective Subsidiaries may enter into and consummate transactions permitted by Section 9.04 (other than Section 9.04(e)) and Section 9.05 (other than Section 9.05(l)). To the extent that the Parent or its Subsidiaries are permitted to make any Restricted Payments pursuant to this Section 9.06, the same may be made as a loan or advance to the recipient thereof, and in such case the amount of such stock option plan loan or any other agreement under which such shares advance so made shall reduce the amount of Capital Stock, options, related rights Restricted Payments that may be made by the Parent or similar securities were issued (collectively referred to as aits Subsidiaries in respect thereof.
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower No Credit Agreement Party will, nor will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to applyto, declare or pay any dividends (other than dividends payable solely in non-redeemable common stock or comparable common equity interests of Holdings or any such Subsidiary, as the case may be) or return any equity capital to, its fundsstockholders, partners, members or other equity holders or authorize or make any other distribution, payment or delivery of property or assets cash to the purchaseits stockholders, redemptionpartners, exchange, sinking fund members or other retirement ofequity holders as such, or agree redeem, retire, purchase or permit any of its Subsidiaries to purchaseotherwise acquire, redeem directly or exchangeindirectly, for a consideration, any shares of any class of Capital Stock (its capital stock or other Equity Interests, now or hereafter outstanding) outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares or other Equity Interests), or set aside any funds for any of the Borrowerforegoing purposes, warrants, options and no Credit Agreement Party will permit any of its Subsidiaries to purchase or other rights with respect to otherwise acquire for a consideration any shares of any class of Capital Stock (the capital stock or other Equity Interests of any direct or indirect parent of such Subsidiary now or hereafter outstandingoutstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock or other Equity Interests) (all of the Borrower;
(bforegoing “Dividends”) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) make any obligation arising under or payments in respect of the Seller Note and will not apply any outstanding Shareholder Subordinated Notes or permit any of its Subsidiaries to apply any of its fundsIntercompany Debt, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;except that:
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make (x) any payment Subsidiary of the Borrower may pay Dividends to the Borrower or prepayment any Wholly-Owned Subsidiary of principal of, the Borrower and (y) any non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its shareholders generally so long as the Borrower or make any payment of interest on, any Senior Note on any day other than its Subsidiary which owns the stated, scheduled date for such payment or prepayment set forth Equity Interest in the documents Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interests in the Subsidiary paying such Dividends and instruments memorializing such Senior Notetaking into account the relative preferences, or which would violate if any, of the subordination provisions various classes of Equity Interests of such Senior Note, Subsidiary); provided that any Dividend made pursuant to preceding clause (x) to any Wholly-Owned Subsidiary that is not a Credit Party may only be made if (A) (I) no Specified Default and no Event of Default then exists or would result therefrom and (II) such Wholly-Owned Subsidiary promptly distributes and/or transfer any Property received pursuant to such Dividend (directly or indirectly through other Wholly-Owned Subsidiaries) to a Credit Party or (ii) redeem, repurchase or defease any Senior Note; and
(dB) the Borrower will not, and will Subsidiary making such Dividend is not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments")a Credit Party; provided, provided however, that,
(e) , subject to Section 10.01(d)(v), any such Dividend may be made to the Bermuda Partnership notwithstanding the provisions existence of clause an Event of Default (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in other than an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iiiEvent of Default under Section 11.01 or 11.05) so long as (Aa) no Default shall have occurred the Bermuda Partnership complies with clause (II) of the preceding proviso and be continuing on (b) the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, Bermuda Partnership Partners are (B) after giving effect to the making receipt of such Restricted Payment the Borrower shall be any Dividend from Bermuda Partnership) in pro forma compliance with the covenants requirements of Section 10.01(d);
(ii) Holdings may redeem or purchase shares of Holdings Common Stock or options to purchase Holdings Common Stock, as the case may be, held by former officers or employees of Holdings or any of its Subsidiaries following the death, disability, retirement or termination of employment of such officers or employees, provided that (w) the only consideration paid by Holdings in respect of such redemptions and/or purchases shall be cash and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount paid by Holdings in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, shall not exceed $2,000,000 in any Fiscal Year of Holdings, and (z) at the time of any redemption or purchase pursuant to this Section 10.06(ii), no Specified Default or Event of Default shall then exist or result therefrom;
(iii) (A) the Borrower may pay cash Dividends to Intermediate Holdco, so long as (x) no Specified Default or Event of Default then exists or would result therefrom and (y) the cash proceeds thereof are promptly used by Intermediate Holdco to pay the cash Dividend described in succeeding clause (B) and (B) Intermediate Holdco may pay cash Dividends to Holdings, so long as (x) no Specified Default or Event of Default then exists or would result therefrom and (y) the cash proceeds thereof are promptly used by Holdings for the purposes described in Section 10.06(ii);
(iv) (A) the Borrower may pay cash Dividends to Intermediate Holdco, so long as the proceeds thereof are promptly used by Intermediate Holdco to pay its operating expenses in the ordinary course of business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses, (B) the Borrower may pay cash Dividends to Intermediate Holdco, so long as Intermediate Holdco promptly contributes such proceeds to Corporate Holdco and the proceeds of such contribution are promptly used by Corporate Holdco to pay its operating expenses in the ordinary course of business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses, and (C) the Borrower may pay cash Dividends to Intermediate Holdco, which, in turn, may pay cash Dividends to Holdings, so long as the proceeds thereof are promptly used by Holdings to pay operating expenses in the ordinary course of its business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs and expenses;
(v) the Borrower may pay cash Dividends to Intermediate Holdco, and Intermediate Holdco may in turn pay cash Dividends to Holdings, in the amounts and at the times of any payment by Holdings in respect of its taxes (or taxes of its consolidated group), provided that (x) the amount of cash Dividends paid pursuant to this clause (v) to enable Holdings to pay taxes at any time shall not exceed the amount of such taxes owing by Holdings at such time and (y) any refunds received by Holdings attributable to the Borrower or any of its Subsidiaries shall be promptly returned by Holdings to Intermediate Holdco, and, in turn, by Intermediate Holdco to the Borrower, provided further that (A) in no event shall the amount of Dividends paid by the Borrower and its Subsidiaries pursuant to this Section 10.06(v) in respect of any taxable year for which the Borrower and any of its Subsidiaries are included in a consolidated federal income tax return, or a consolidated, combined or unitary state or local tax return with any Person other than the Borrower and its Subsidiaries (such other Person or Persons included in such returns, together with the Borrower and its Subsidiaries, the “Affiliated Group”) exceed, in the aggregate, the lesser of (I) the amount of such federal income tax or state or local tax, as the case may be (the “Relevant Separate Tax Liability”), that the Borrower and its Subsidiaries would have been obligated to pay if the Borrower and its Subsidiaries had filed a separate consolidated federal income tax return or a separate consolidated, combined or unitary state or local tax return, as the case may be, for such year and all prior taxable years (with the Borrower as the common parent of such affiliated group) and (II) the product of (a) the federal income or state or local tax liability, as the case may be, of the Affiliated Group for such year and (b) a fraction, (x) the numerator of which is an amount equal to the Relevant Separate Tax Liability of the Borrower and its Subsidiaries for such year and (y) the denominator of which is the aggregate of the total separate federal income, state or local tax liability, as the case may be, that each member of the Affiliated Group (treating the Borrower and its Subsidiaries as a single member and all other members of the Affiliated Group as one separate member) would have incurred for such year if such members had filed separate federal income tax returns or separate consolidated, combined or unitary state or local tax returns, as the case may be, for such year and all prior taxable years and (B) each Unrestricted Wellbeing Joint Venture shall be required to contribute to Holdings (and shall concurrently or prior to any payment of any Dividend by the Borrower pursuant to this Section 10.06(v) have contributed to Holdings) its allocable share (as reasonably determined by Holdings in good faith) of all tax liabilities of Holdings and its consolidated Subsidiaries;
(vi) Holdings and its Subsidiaries may make payments with respect to Intercompany Debt, so long as the respective payment is permitted to be made in accordance with the terms of the Intercompany Subordination Agreement; provided that, in no event shall the Borrower be permitted to repay any Intercompany Debt incurred by it from Intermediate Holdco pursuant to Section 10.05(xxi), unless the conditions set forth in subclauses (i), (ii), (iii) and (iv) of Section 7.2.4 10.06(ix) shall have been satisfied at such time (for such purposes, treating each reference to the making of a Dividend in said subclauses as if it were a reference to the repayment of such Intercompany Debt);
(vii) Holdings may make payments of interest and principal on the Shareholder Subordinated Notes in accordance with the terms thereof, so long as the sum of (A) the aggregate amount paid by Holdings in cash in respect of all redemptions and/or purchases of Holdings Common Stock pursuant to Section 10.06(ii) plus (B) the aggregate amount of all principal and interest payments made on Shareholder Subordinated Notes, does not exceed $2,000,000 in any Fiscal Year of Holdings;
(viii) Holdings may pay regularly scheduled Dividends on Qualified Preferred Stock issued by it pursuant to the terms thereof solely through the issuance of additional shares of such Qualified Preferred Stock rather than in cash;
(ix) the Borrower may pay cash Dividends to Intermediate Holdco, and Intermediate Holdco may pay cash Dividends to Holdings, at the times and for the most recent full Fiscal Quarter immediately preceding purposes described below, so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) the aggregate amount of such cash Dividends shall not exceed the aggregate amount of cash common equity contributions received by the Borrower from Intermediate Holdco (including not more than $28,500,000 received prior to the Effective Date), to and including the date of such cash Dividend, pursuant to clause (v) of Section 10.05(viii) or Section 10.05(xix), in each case only to the extent such cash common equity contributions were funded by Intermediate Holdco with proceeds from the incurrence of any Wellbeing Project Financing, (iii) each such Dividend is permitted pursuant to the terms of the Existing Senior Notes Documents and, on and after the execution and delivery thereof, the Permitted Senior Notes Documents and the Permitted Refinancing Senior Notes Documents, (iv) no such Dividend by the Borrower to Intermediate Holdco shall be paid, unless the proceeds thereof are promptly (and in any event within 5 Business Days of the payment of such Restricted Payment Dividend) (A) Dividended by Intermediate Holdco to Holdings for which use within the relevant financial information has been delivered time periods required by, and for the purposes described in, immediately succeeding clause (v) and (B) on-loaned by Intermediate Holdco to Holdings for use within the time periods required by, and for the purposes described in, Sub-clause (v) of preceding Section 10.05(xxi) and (v) the proceeds of each such Dividend received by Holdings shall be utilized by Holdings promptly (and, in any event, within 30 days of the payment of such Dividend) to make an Investment in one or more Unrestricted Wellbeing Joint Ventures pursuant to Section 10.05(xx) for the purposes of financing the Wellbeing Project and/or the operations of the Unrestricted Wellbeing Joint Ventures;
(x) the Refinancing may be consummated in accordance with the requirements of this Agreement;
(xi) so long as no Default and no Event of Default then exists or would result therefrom, any Existing Senior Notes, any Permitted Senior Notes and any Permitted Refinancing Senior Notes may be refinanced with any Permitted Refinancing Senior Notes in accordance with the requirements of this Agreement;
(xii) so long as no Specified Default and no Event of Default then exists or would result therefrom, any Scheduled Existing Indebtedness, any Permitted Acquired Debt and any Permitted Refinancing Indebtedness incurred to refinance same may be refinanced with Permitted Refinancing Indebtedness in accordance with the requirements of this Agreement; and, so long as no Event of Default has occurred and is continuing or would result therefrom, the Existing Senior Notes and any Permitted Refinancing Senior Notes may be exchanged for Equity Interests of Holdings permitted by Section 10.10(a);
(xiii) in addition to the actions permitted above, the Borrower and its Subsidiaries may make Investments (and, without duplication, may repurchase or redeem (so long as any repurchased Indebtedness is promptly cancelled) any Indebtedness otherwise described in Section 10.09(a)(i)), so long as (I) no Default or Event of Default then exists or would result therefrom, (II) the aggregate amount of cash expended pursuant to this Section 10.06 (xiii) to effect such Investments after the Effective Date does not exceed the sum of (x) $50,000,000 and (y) the aggregate amount of Retained Excess Cash Flow Amount at the time such Investment is made and (III) to the extent any such Investment (or any part thereof) is made in reliance on preceding clause (aII)(y), calculations are made by the Borrower of compliance with Section 10.04(a) (regardless of whether any Indebtedness is then being incurred pursuant to said Section 10.04(a)) for the Calculation Period most recently ended prior to the date of the respective repurchase or clause redemption (b) determined on a Pro Forma Basis after giving effect to such Investment and the incurrence of Section 7.1.1any Indebtedness to finance same), and (C) as set forth in a certificate by an Authorized Officer of the Borrower shall have delivered a certificate furnished to the Agents in form Administrative Agent on the date of such Investment, and substance satisfactory such calculations shall show that, after giving effect to the Agents respective Investment (including a calculation and any contemporaneous Investments) and any Indebtedness being incurred in connection therewith, the Borrower would be permitted to incur at least $1 of the compliance with the covenants set forth in additional Indebtedness pursuant to Section 7.2.410.04(a) certifying as at such time; provided that, to the accuracy extent that such Investments constitute redemptions and/or repurchases of clauses Existing Senior Notes, Permitted Senior Notes and/or Permitted Refinancing Senior Notes from time to time (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), whether redeemed in all cases only upon death, disability, retirement, termination of employment or pursuant to accordance with the terms of the indenture therefor and/or repurchased on the open market), all such stock option plan Existing Senior Notes, Permitted Senior Notes or Permitted Refinancing Senior Notes, as the case may be, so repurchased or redeemed are promptly cancelled by the Borrower; and
(xiv) in addition to the actions permitted above, the Borrower and its Subsidiaries may make Investments (and, without duplication, may repurchase or redeem) in any other agreement under which Existing 2009 Senior Notes or Existing 2010 Senior Notes so long as (I) no Default or Event of Default then exists or would result therefrom, (II) the aggregate amount of cash expended pursuant to this Section 10.06(xiv) to effect such shares Investments after the Effective Date does not exceed $50,000,000, (III) after giving effect to such Investments, redemptions and repurchases, the Borrower (A) would be in compliance with Section 9.13 of Capital Stock, options, related rights the Term Credit Agreement (as in effect on the effective date of Amendment 1) as of the most recently completed test date and (B) has not less than $70,000,000 of Borrowing Availability and (IV) all such Existing 2009 Senior Notes or similar securities were issued (collectively referred to as aExisting 2010 Senior Notes so repurchased or redeemed are promptly cancelled by the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Restricted Payments, etc. On and at all times after None of the date hereofGroup Companies will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) of such Person), except that:
(ai) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower may make Restricted Payments to the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower;
(bii) any non-Wholly-Owned Subsidiary of the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to may make Restricted Payments to Holdco the Borrower or to any Wholly-Owned Subsidiary of the Borrower or ratably to all holders of its outstanding Equity Interests;
(iii) Holdings and Intermediate Holdings may redeem or repurchase Equity Interests (or Equity Equivalents) or to make payments on notes issued in connection with the prior redemption or purchase of such Equity Interests and permitted pursuant to Section 7.01(xii) from (A) officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise or (B) other holders of Equity Interests or Equity Equivalents in Holdings and Intermediate Holdings, so long as the purpose of such purchase is to acquire common stock for reissuance to new officers, employees and directors (or their estates) of any Group Company, to the extent necessary to enable Holdco to (i) pay its overhead expenses so reissued within 12 months of any such purchase; provided that in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as all such cases (A) no Default shall have occurred and be continuing on the date such Restricted Payment or Event of Default is declared then in existence or to be made, nor would a Default result from the making of such Restricted Paymentotherwise arise therefrom, (B) the aggregate amount of all cash distributed by the Borrower directly or indirectly to Holdings and Intermediate Holdings in respect of all such shares so redeemed or repurchased (or otherwise spent by Holdings and Intermediate Holdings) does not exceed $2,300,000 in any fiscal year of Holdings (with unused amounts being carried forward to succeeding fiscal years) or $11,500,000 in the aggregate from and after giving effect the Closing Date, and provided further that Holdings and Intermediate Holdings may purchase, redeem or otherwise acquire Equity Interests and Equity Equivalents of Holdings and Intermediate Holdings pursuant to this clause (iii) without regard to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants restrictions set forth in Section 7.2.4 the first proviso above for consideration consisting of the proceeds of key man life insurance obtained for the most recent full Fiscal Quarter immediately preceding purposes described in this clause (iii);
(iv) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the date Borrower may make cash Restricted Payments, directly or indirectly, to Holdings and Intermediate Holdings, if Holdings and Intermediate Holdings promptly uses such proceeds for the purposes described in clause (iii) above;
(v) the Borrower and Intermediate Holdings may make cash Restricted Payments, directly or indirectly, to Intermediate Holdings or Holdings (as the case may be) for the purpose of paying, and in amounts not to exceed the amount necessary to pay, (A) the then currently due fees and expenses of Holdings' counsel, accountants and other advisors and consultants, and other operating and administrative expenses of Holdings (including employee and compensation expenditures and other similar costs and expenses) incurred in the ordinary course of business that are for the benefit of, or are attributable to, or are related to, including the financing or refinancing of, Holdings' Investment in the Borrower and its Subsidiaries, (B) the then currently due fees and expenses of Holdings' independent directors and observers, (C) the then currently due taxes payable by Holdings solely on account of the income of Holdings related to its Investment in the Borrower and its Subsidiaries and the reasonable expenses of preparing returns reflecting such taxes; provided that Holdings agrees to be obligated to contribute to the Borrower any refund Holdings receives relating to any such taxes and (D) so long as no Default or Event of Default is then in existence or would arise therefrom, other fees and expenses permitted under Section 7.09;
(vi) the Borrower may pay directly or indirectly to Intermediate Holdings or Holdings the amount that Holdings is required to pay for franchise, federal, state, local or other taxes on income as the common parent of an affiliated group (within the meaning of Section 1504 of the Code) and quarterly or annually for other taxes incurred by Intermediate Holdings or Holdings; provided that (A) such payments with respect to income taxes may be made only in respect of the period during which the Borrower is consolidated with Holdings for purposes of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, taxes and (CB) an Authorized Officer no such payment by the Borrower may be paid until 15 days after receipt by the Lenders of a certificate of the chief financial officer or chief accounting officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory acceptable to the Agents (including a calculation of the Lenders demonstrating compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses foregoing provisions (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively payments being herein referred to as a("Permitted Tax Dividends").
(vii) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the Borrower may make Restricted Payments to Holdings, directly or indirectly, provided that (A) all proceeds thereof are applied by Holdings solely for the purposes of Section 7.08(d); and (B) no such Restricted Payment shall be made if an interest payment in respect of the Junior Debentures could not, but for such Restricted Payment, be made in accordance with Section 7.08(d);
(viii) Holdings and its Subsidiaries may make Restricted Payments made with Net Cash Proceeds of one or more Qualifying Equity Issuances within three Business Days following the receipt thereof; provided that, after giving effect to such Restricted Payment, no Change of Control shall have occurred;
(ix) Holdings and Intermediate Holdings may make noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; and
(x) cash payments by Holdings and Intermediate Holdings in lieu of the issuance of fractional shares upon exercise or conversion of Equity Equivalents.
Appears in 1 contract
Restricted Payments, etc. On and at all times after None of the date hereofGroup Companies will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) of such Person), except that:
(ai) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower Company may make Restricted Payments to the Company or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower;
(bii) any non-Wholly-Owned Subsidiary of the Company may make Restricted Payments to the Company or to any Wholly-Owned Subsidiary of the Company or ratably to all holders of its outstanding Equity Interests;
(iii) Holdings may redeem or repurchase Equity Interests (or Equity Equivalents) or make Restricted Payments to DR Shareholders LLC to enable DR Shareholders LLC to redeem or repurchase Equity Interests (or Equity Equivalents) from (A) officers, employees, directors and consultants of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise in accordance with (x) the Borrower will not pay or otherwise reimburse Stockholders’ Agreement, (in cash, property or obligationsy) any obligation arising under equity or stock based plan or any employee stock ownership plan maintained by Holdings or DR Shareholders LLC or any of their respective Subsidiaries, or (z) any employment or consulting agreement set forth on Schedule 7.07(iii) hereto or (B) other holders of Equity Interests or Equity Equivalents in Holdings or DR Shareholders LLC, so long as the purpose of such purchase is to acquire common stock for reissuance to new officers, employees and directors (or their estates) of any Group Company, to the extent so reissued within 12 months of any such purchase; provided that in all such cases (A) no Default or Event of Default is then in existence or would otherwise arise therefrom and (B) the aggregate amount of all cash paid in respect of all such shares so redeemed or repurchased does not exceed $2,500,000 in any fiscal year of Holdings or $10,000,000 in the Seller Note aggregate from and will not apply or permit after the Closing Date, plus, in each case the aggregate amount of any Net Cash Proceeds of its Subsidiaries to apply any of its funds, property or assets Equity Issuances are contributed by Holdings as equity capital to the Company as a result of sales by Holdings of Equity Interests of Holdings to officers, employees, directors and consultants and provided further that Holdings may purchase, redemption, exchange, sinking fund redeem or other retirement otherwise acquire Equity Interests and Equity Equivalents of Holdings pursuant to this clause (iii) without regard to the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment restrictions set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit first proviso above for any consideration consisting of the foregoing proceeds of key man life insurance obtained for the purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or described in this clause (d) are herein collectively referred to as "Restricted Payments"iii); provided, however, that,;
(eiv) notwithstanding so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the provisions of Company may make cash Restricted Payments to Holdings, and Holdings may make Restricted Payments to DR Shareholders LLC, if Holdings or DR Shareholders, respectively, promptly uses such proceeds for the purposes described in clause (aiii) above;
(v) the Company may make cash Restricted Payments to (A) Holdings to enable Holdings to pay, the Borrower shall be permitted or to enable Holdings to make Restricted Payments to Holdco DR Shareholders LLC to enable DR Shareholders LLC to pay, as the case may be, franchise taxes, accounting, legal and other fees required to maintain its respective corporate existence and to provide for other operating costs, in each case related to the extent necessary Company, (B) DR Shareholders LLC or Holdings pursuant to the Tax Sharing Agreement dated as of the date hereof among Holdings and its Subsidiaries, as amended, restated or modified from time to time, and (C) DR Shareholders LLC or Holdings in order to enable Holdco DR Shareholders LLC or Holdings to pay customary and reasonable costs and expenses of a proposed offering of securities or incurrence of Indebtedness of DR Shareholders LLC or Holdings that is not consummated;
(ivi) pay its overhead expenses the Company may make Restricted Payments to Holdings in an amount not to exceed $250,000 in 1,250,000 per fiscal year to enable Holdings to make payment of Permitted Management Fees required under the aggregate in any Fiscal Year, Management Agreement and permitted to be paid pursuant to Section 7.09(i);
(iivii) pay its taxes and (iii) so long as (A) no Default shall have occurred and Restricted Payments may be continuing made on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect Closing Date to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants extent set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause Schedule 7.07 hereto;
(aviii) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares repurchases of Capital Stock deemed to occur upon the cashless exercise of Holdco or Preferred Stock stock options and warrants shall be permitted; and
(ix) the Company may make Restricted Payments in respect of interest and penalties on the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant Senior Subordinated Notes to the terms of such stock option plan or any other agreement extent allowed under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aSection 7.08(c).
Appears in 1 contract
Samples: Senior Secured Term Credit Agreement (Duane Reade Inc)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Each Borrower will not, and will not permit any of its Subsidiaries to, make any Restricted Payment, or make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause Restricted Payment, other than:
(a)) Restricted Payments (i) for customary director indemnification payments to the directors (or equivalent persons) of such Person, (ii) for reasonable and customary fees to outside directors (or equivalent persons) of such Person and for customary director (or equivalent persons) and officers insurance premiums owed by such Person, (iii) for financial, other reporting and similar customary administrative or overhead costs and expenses of such Person, (iv) for obligations incurred in the Ordinary Course of Business to the extent relating to activities permitted under this Agreement and (v) for Tax Distributions;
(b) payments by any Subsidiary of any Borrower to its direct parent (other than GPM) so long as such parent is (i) a direct or indirect wholly-owned Subsidiary of any Borrower, (ii) GPM or (iii) a direct parent (other than GPM or a direct or indirect parent of GPM) of a non-wholly-owned Subsidiary, in which case such payment shall be made pro rata to such parent based on its relative ownership interests in the class of equity receiving such Restricted Payment;
(c) above Restricted Payments by any Borrower or any of its Subsidiaries to pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Equity Interests);
(d) Restricted Payments to repurchase, redeem or otherwise acquire or retire for value any Equity Interests of the Borrowers or their Subsidiaries held by any current or former employee, director, consultant or officer (or their transferees, spouses, ex-spouses, estates or beneficiaries under their estates) of any Borrower or Subsidiary of any Borrower pursuant to any employee equity subscription agreement, stock option agreement or stock ownership arrangement, including upon the death, disability, retirement, severance or termination of employment or service of such Persons to the extent (i) not exceeding $1,000,000 in the aggregate during any fiscal year (plus (x) any amounts funded with issuances of Equity Interests of the Borrowers (or any direct or indirect parent entity thereof) or proceeds in respect thereof used to repurchase such Equity Interests and (y) amounts solely in the form of forgiveness of Indebtedness of such Persons owing to the Borrowers on account of redemptions or repurchases of the Equity Interests of the Borrowers held by such Persons) and (ii) both before and after giving effect to any such payment, no Specified Event of Default or Financial Covenant or Financial Reporting Event of Default exists or would immediately thereafter occur as a result thereof; provided that to the extent any amounts remain unused under subclause (i) of this clause (d) are herein collectively referred in a given fiscal year of the Borrowers may be carried forward and made in the immediately succeeding fiscal year of the Borrowers without regard to as "Restricted Payments"); provided, however, that,any caps set forth herein;
(ei) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments in connection with the Profits Interest Agreement and (ii) Restricted Payments in an aggregate amount of up to Holdco $1,000,000 per fiscal year to pay advisory fees pursuant to the Xxxx Advisory Agreement plus any amounts accrued and not paid for periods prior to the Closing Date;
(f) payments of Indebtedness of the type described in Section 7.8(l) hereof to the extent necessary to enable Holdco to made in conformity with the terms of Section 7.8(l);
(ig) pay its overhead expenses Restricted Payments made using either, or a combination of, the proceeds of the Class F Equity Issuance or the Initial Term Loan Facility (as such term is defined in the Ares Term Loan Agreement) in an aggregate principal amount not to exceed $250,000 20,000,000;
(h) Restricted Payments (x) in connection with the redemption of the Class F units of GPM pursuant to the GPMI Operating Agreement in an aggregate in principal amount not to exceed $20,000,000 plus any Fiscal Year, (ii) pay its taxes and (iii) amounts accreted after the Closing Date so long as prior to and after giving effect to any such redemption, Borrowers have Undrawn Availability and Average Undrawn Availability of not less than twenty percent (20%) of the Maximum Revolving Advance Amount and (y) in connection with the redemption of the Senior Preferred Member Units and/or the Class E Member Units (in each case, pursuant to and as defined in the GPMI Operating Agreement) in an aggregate principal amount not to exceed $62,000,000 plus any amounts accreted after the Closing Date; provided, that (A) the Total Leverage Ratio on a Pro Forma Basis after giving effect to all such Restricted Payments under such subclause (y), shall not exceed an amount equal to 1.50x less than the Closing Date Leverage Ratio and (B) prior to and after giving effect to any such redemption, Borrowers have Undrawn Availability and Average Undrawn Availability of not less than twenty percent (20%) of the Maximum Revolving Advance Amount;
(i) to the extent constituting Restricted Payments, payments of Indebtedness permitted pursuant to Section 7.17 hereof;
(j) other Restricted Payments in an aggregate principal amount not to exceed $1,000,000 in the aggregate; provided that no Event of Default shall have occurred and be continuing on or would immediately result therefrom; provided further that any unused portion of this clause (j) may be reallocated to Investments in Section 7.4(v) hereof; and
(k) Restricted Payments utilizing the date Available Amounts Basket; provided that (i) no Event of Default shall have occurred and be continuing or would result therefrom, and (ii) solely for purposes of utilizing availability under clause (a)(i) of the Available Amounts Basket, after giving effect to any such Restricted Payment is declared on a Pro Forma Basis, the Total Leverage Ratio shall not exceed an amount equal to 1.00x less than the Closing Date Leverage Ratio.; and
(l) Restricted Payments by GPM to its members for the sole purpose of simultaneously servicing regularly scheduled payments of principal and interest in respect of the 2021 Note Obligations so long as (i) no Event of Default shall have occurred and be continuing or would result therefrom and (ii) prior to be made, nor would a Default result from the making of and after giving effect to any such Restricted Payment, Borrowers have Undrawn Availability and Average Undrawn Availability of not less than twenty percent (B20%) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aMaximum Revolving Advance Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (ARKO Corp.)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower Each Credit Party will not, and will not permit any of its Subsidiaries toSubsidiaries, (i) to make any payment or prepayment of principal ofRestricted Payment, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any Restricted Payment, other than:
(a) cash payments to the Borrower and/or to Holdings to be used (i) for Tax Distributions, (ii) to pay (or to make Restricted Payments to any direct or indirect parent of Holdings to pay) franchise and similar taxes of Holdings, San Vxxxxxx Holdings, LLC or any entity affiliated with San Vxxxxxx Holdings, LLC, in each case, formed solely for the foregoing purposes purpose of directly or indirectly holding the equity of Holdings, provided that such entities may engage in the activities contemplated by Section 8.22, and (the foregoing prohibited acts referred iii) to in pay (or to make Restricted Payments to any direct or indirect parent of Holdings to pay) taxes imposed on any distributions permitted by this clause (a), ;
(b) payments by any Subsidiary of any Credit Party to its direct parent (other than Holdings) so long as such parent is (i) a direct or indirect Wholly-Owned Subsidiary of any Credit Party, (ii) the Borrower or (iii) a direct parent (other than Holdings or a direct or indirect parent of Holdings) of a non-Wholly-Owned Subsidiary, in which case such payment shall be made pro rata to such parent based on its relative ownership interests in the class of equity receiving such Restricted Payment;
(c) above Restricted Payments by any Credit Party or any of its Subsidiaries to pay dividends with respect to its Capital Stock payable solely in additional shares of its Capital Stock (other than Disqualified Capital Stock);
(d) Restricted Payments to repurchase, redeem or otherwise acquire or retire for value any Capital Stock of Holdings, any direct or indirect parent of Holdings or its Subsidiaries held by any current or former employee, director, consultant or officer (or their transferees, spouses, ex-spouses, estates or beneficiaries under their estates) of any Credit Party or Subsidiary of any Credit Party pursuant to any employee equity subscription agreement, equity option agreement or equity ownership arrangement, including upon the death, disability, retirement, severance or termination of employment or service of such Persons to the extent (i) not exceeding $1,000,000 in the aggregate during any fiscal year and (ii) both before and after giving effect to any such payment, no Specified Event of Default or Financial Covenant or Financial Reporting Event of Default exists or would immediately thereafter occur as a result thereof; provided that to the extent any amounts remain unused under subclause (i) of this clause (d) are herein collectively referred in a given fiscal year of Holdings may be carried forward and made in the immediately succeeding fiscal year of Holdings without regard to as "Restricted Payments"); provided, however, that,any caps set forth herein;
(e) notwithstanding no earlier than 91 days after the provisions date the Bridge Amortization payment has been made (together with the Applicable Prepayment Premium), Restricted Payments in an aggregate amount not to exceed 125% of clause the Deferred Purchase Price so long as (aw) abovethe amount of such Restricted Payments shall not exceed the amount necessary (after taking into account minority interests) to pay the Deferred Purchase Price, (x) the Borrower Total Leverage Ratio (calculated on a Pro Forma Basis) does not exceed 2.50:1.00, (y) pro forma Consolidated Liquidity is no less than $10,000,000 and (z) no Event of Default shall have occurred and be permitted continuing or would result therefrom;
(f) Restricted Payments to Holdings to pay (or to make Restricted Payments to Holdco any direct or indirect parent of Holdings to pay) administrative, regulatory, accounting, auditing, directors, insurance and other ordinary course of business fees and expenses of Holdings or any direct or indirect parent of Holdings (to the extent necessary solely attributable to enable Holdco ownership of Holdings), not to exceed $1,000,000 per fiscal year or otherwise with the prior written consent of the Administrative Agent, which shall not be unreasonably withheld, conditioned or delayed;
(g) Restricted Payments on or within one hundred and eighty (180) days after the Closing Date for the payment of out-of-pocket legal and accounting fees, costs and expenses in connection with the Transactions subject to delivery of invoices to the Administrative Agent promptly following the Closing Date;
(h) Restricted Payments to Holdings to pay (or to make Restricted Payments to any direct or indirect parent of Holdings to pay) the Aggregate Estimated Adjustment Amount and the difference (if positive) between the Aggregate Final Adjustment Amount and the Aggregate Estimated Adjustment Amount (each as defined in the Acquisition Agreement);
(i) Restricted Payments to pay its overhead monitoring, consulting, management, transaction, advisory, termination or similar fees (including termination fees, related indemnities and expense and any other fees and expenses paid or payable to or for the benefit of the Sponsor, any direct or indirect equity holder of Holdings or any Affiliate of the Sponsor or such equity holder) (which fees and expenses may be paid in the form of dividends) payable to the Sponsor, any direct or indirect equity holder of Holdings or any Affiliate of the Sponsor or such equity holder, in each case, subject to the Service Agreement in an amount not to exceed $250,000 2,000,000 in the aggregate in any Fiscal Yearper fiscal year; provided, (ii) pay its taxes and (iii) so long as (A) that, no Event of Default shall have occurred and be continuing on the date or would result from such Restricted Payment is declared Payment;
(j) to the extent constituting Restricted Payments, payments of Indebtedness permitted pursuant to Section 10.13; and
(k) Restricted Payments to Holdings (or a direct or indirect parent of Holdings) to pay taxes imposed on Holdings (or a direct or indirect parent of Holdings) relating to the vesting of stock-based awards consistent with past practice.; and
(l) Restricted Payments with the proceeds of the 2022-I Supplemental DDTLs and/or the 2022-II Supplemental DDTLs to part-finance distributions from Grindr Group LLC of $2.55 per Series X Ordinary Unit of Grindr Group LLC, in an aggregate amount not to exceed $286,686,685, which will (in the case of distributions received by any Subsidiary of San Vxxxxxx Holdings LLC) be madeused solely to (without duplication) satisfy the Deferred Purchase Price and make payments in connection with the deSPAC Transactions (including any pre-merger restructuring steps), nor would a Default result from provided that, at the making time of such Restricted PaymentPayments, (Bx) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date San Vxxxxxx Group Holdings LLC owns at least 88% of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, issued and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form outstanding voting and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of economic Capital Stock of Holdco Grindr Group LLC and (y) San Vxxxxxx Group TopCo LLC will directly or Preferred Stock indirectly receive not less than 100% of the Borrower held distributions made by directorsSan Vxxxxxx Group Holdings LLC. Notwithstanding the foregoing, officers or employees of Holdco or the Borrower no COVID-19 Proceeds received by any Credit Party or any of its Subsidiaries, their respective Subsidiaries shall be used directly or options on indirectly to make any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aRestricted Payments.
Appears in 1 contract
Samples: Credit Agreement (Grindr Inc.)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Each Borrower will not, and will not permit any of its Subsidiaries to, make any Restricted Payment, or make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause Restricted Payment, other than:
(a)) Restricted Payments (i) for customary director indemnification payments to the directors (or equivalent persons) of such Person, (ii) for reasonable and customary fees to outside directors (or equivalent persons) of such Person and for customary director (or equivalent persons) and officers insurance premiums owed by such Person, (iii) for financial, other reporting and similar customary administrative or overhead costs and expenses of such Person, (iv) for obligations incurred in the Ordinary Course of Business to the extent relating to activities permitted under this Agreement and (v) for Tax Distributions;
(b) payments by any Subsidiary of any Borrower to its direct parent (other than GPM) so long as such parent is (i) a direct or indirect wholly-owned Subsidiary of any Borrower, (ii) GPM or (iii) a direct parent (other than GPM or a direct or indirect parent of GPM) of a non-wholly-owned Subsidiary, in which case such payment shall be made pro rata to such parent based on its relative ownership interests in the class of equity receiving such Restricted Payment;
(c) above Restricted Payments by any Borrower or any of its Subsidiaries to pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Equity Interests);
(d) Restricted Payments to repurchase, redeem or otherwise acquire or retire for value any Equity Interests of the Borrowers or their Subsidiaries held by any current or former employee, director, consultant or officer (or their transferees, spouses, ex-spouses, estates or beneficiaries under their estates) of any Borrower or Subsidiary of any Borrower pursuant to any employee equity subscription agreement, stock option agreement or stock ownership arrangement, including upon the death, disability, retirement, severance or termination of employment or service of such Persons to the extent (i) not exceeding $1,000,000 in the aggregate during any fiscal year (plus (x) any amounts funded with issuances of Equity Interests of the Borrowers (or any direct or indirect parent entity thereof) or proceeds in respect thereof used to repurchase such Equity Interests and (y) amounts solely in the form of forgiveness of Indebtedness of such Persons owing to the Borrowers on account of redemptions or repurchases of the Equity Interests of the Borrowers held by such Persons) and (ii) both before and after giving effect to any such payment, no Specified Event of Default or Financial Covenant or Financial Reporting Event of Default exists or would immediately thereafter occur as a result thereof; provided that to the extent any amounts remain unused under subclause (i) of this clause (d) are herein collectively referred in a given fiscal year of the Borrowers may be carried forward and made in the immediately succeeding fiscal year of the Borrowers without regard to as "Restricted Payments"); provided, however, that,any caps set forth herein;
(ei) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments in connection with the Profits Interest Agreement and (ii) Restricted Payments in an aggregate amount of up to Holdco $1,000,000 per fiscal year to pay advisory fees pursuant to the Xxxx Advisory Agreement plus any amounts accrued and not paid for periods prior to the Closing Date;
(f) payments of Indebtedness of the type described in Section 7.8(l) hereof to the extent necessary to enable Holdco to made in conformity with the terms of Section 7.8(l);
(ig) pay its overhead expenses Restricted Payments made using either, or a combination of, the proceeds of the Class F Equity Issuance or the Initial Term Loan Facility (as such term is defined in the Ares Term Loan Agreement) in an aggregate principal amount not to exceed $250,000 20,000,000;
(h) Restricted Payments (x) in connection with the redemption of the Class F units of GPM pursuant to the GPMI Operating Agreement in an aggregate in principal amount not to exceed $20,000,000 plus any Fiscal Year, (ii) pay its taxes and (iii) amounts accreted after the Closing Date so long as prior to and after giving effect to any such redemption, Borrowers have Undrawn Availability and Average Undrawn Availability of not less than twenty percent (20%) of the Maximum Revolving Advance Amount and (y) in connection with the redemption of the Senior Preferred Member Units and/or the Class E Member Units (in each case, pursuant to and as defined in the GPMI Operating Agreement) in an aggregate principal amount not to exceed $62,000,000 plus any amounts accreted after the Closing Date; provided, that (A) the Total Leverage Ratio on a Pro Forma Basis after giving effect to all such Restricted Payments under such subclause (y), shall not exceed an amount equal to 1.50x less than the Closing Date Leverage Ratio and (B) prior to and after giving effect to any such redemption, Borrowers have Undrawn Availability and Average Undrawn Availability of not less than twenty percent (20%) of the Maximum Revolving Advance Amount;
(i) to the extent constituting Restricted Payments, payments of Indebtedness permitted pursuant to Section 7.17 hereof;
(j) other Restricted Payments in an aggregate principal amount not to exceed $1,000,000 in the aggregate; provided that no Event of Default shall have occurred and be continuing on or would immediately result therefrom; provided further that any unused portion of this clause (j) may be reallocated to Investments in Section 7.4(v) hereof; and
(k) Restricted Payments utilizing the date such Restricted Payment is declared Available Amounts Basket; provided that (i) no Event of Default shall have occurred and be continuing or to be madewould result therefrom, nor would a Default result from and (ii) solely for purposes of utilizing availability under clause (a)(i) of the making of such Restricted PaymentAvailable Amounts Basket, (B) after giving effect to the making of any such Restricted Payment on a Pro Forma Basis, the Borrower Total Leverage Ratio shall be in pro forma compliance with not exceed an amount equal to 1.00x less than the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aClosing Date Leverage Ratio.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (ARKO Corp.)
Restricted Payments, etc. On and at all times after None of the date hereofGroup Companies will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) of such Person), except that:
(ai) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower may make Restricted Payments to the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower;
(bii) any non-Wholly-Owned Subsidiary of the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to may make Restricted Payments to Holdco the Borrower or to any Wholly-Owned Subsidiary of the extent necessary Borrower or ratably to enable Holdco to (i) pay all holders of its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and outstanding Equity Interests;
(iii) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the Borrower may make cash Restricted Payments to Holdings to enable Holdings to make Restricted Payments to its parent to permit its parent to redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided that (A) no Default shall have occurred or Event of Default is then in existence or would otherwise arise therefrom and be continuing on (B) the date aggregate amount of all cash paid in respect of all such shares so redeemed or repurchased does not exceed $5,750,000 in the aggregate from and after the Closing Date;
(iv) the Borrower may make cash Restricted Payment is declared Payments to Holdings to enable Holdings to pay, and in amounts not to exceed the amount necessary to pay, (A) the then currently due fees and expenses of Holdings’ or to be madeits parents’ counsel, nor would a Default result from accountants and other advisors and consultants, reimbursements of fees and expenses of the making Sponsor and other operating and administrative expenses of such Restricted PaymentHoldings or its parent (including employee and compensation expenditures, directors’ and officers’ insurance premiums and other similar costs and expenses) incurred in the ordinary course of business that are for the benefit of, or are attributable to, or are related to, including the financing or refinancing of, Holdings’ Investment in the Borrower and its Subsidiaries, (B) after giving effect the then currently due fees and expenses of Holdings’ or its parents’ independent directors in an aggregate amount not to the making of exceed $2,300,000, plus any indemnities owed to such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, person and (C) an Authorized Officer dividends, distributions or advances to Holdings or its Subsidiaries to be used by Holdings, its parent or its Subsidiaries to pay (i) federal, state and local taxes payable by Holdings, its parent or its Subsidiaries and directly attributable to (or arising as a result of) the operations of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents its Subsidiaries (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(Aother than Unrestricted Subsidiaries) and (e)(iii)(Bii) abovefranchise taxes and other fees required to maintain its or its parents’ existence;
(v) payments or distributions pursuant to the Transaction Documents on the Closing Date;
(vi) redemption of stock deemed to occur upon the exercise of stock options or the purchase of stock issued to employees as part of a stock option plan, purchase, redeem, acquire employee incentive plan or otherwise retire for value employee benefit plan;
(vii) dividend payments with respect to and the refinancing of Disqualified Stock;
(viii) the purchase of fractional shares by the Borrower upon conversion of any securities of the Borrower into Capital Stock of the Borrower; and
(ix) distributions of Capital Stock of Holdco or Preferred Stock of Unrestricted Subsidiaries; provided, however, that to the Borrower held by directors, officers or employees of Holdco or extent the Borrower or its Subsidiaries (other than Unrestricted Subsidiaries) has any of its Subsidiariesoutstanding Investment in such Unrestricted Subsidiary that is a permitted Investment, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to then the terms amount of such stock option plan or any other agreement under which Investment at the time of such shares of Capital Stock, options, related rights or similar securities were issued distribution shall be a Restricted Payment not permitted by this clause (collectively referred to as aix).
Appears in 1 contract
Restricted Payments, etc. On Neither the Borrower nor any of its Subsidiaries will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) of such Person), except that:
(i) any Wholly Owned Subsidiary of the Borrower that is a Restricted Subsidiary may make Restricted Payments to the Borrower or to any Wholly Owned Subsidiary of the Borrower that is a Restricted Subsidiary;
(ii) any non-Wholly Owned Subsidiary of the Borrower that is a Restricted Subsidiary may make Restricted Payments to the Borrower or to any Wholly Owned Subsidiary of the Borrower that is a Restricted Subsidiary or to its holders based on their relative ownership interests in its outstanding Equity Interests;
(iii) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the Borrower may redeem or repurchase Equity Interests (or Equity Equivalents) or to make payments on any notes issued to redeem such Equity Interests or Equity Equivalents from (I) officers, employees and at directors of the Borrower or any of its Restricted Subsidiaries (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise, or (II) other holders of Equity Interests or Equity Equivalents in the Borrower; provided that in all times such cases (A) no Default or Event of Default is then in existence or would otherwise arise therefrom and (B) the aggregate amount of all cash paid in respect of all such shares so redeemed or repurchased and all such payments on any such notes does not exceed $12,500,000, and provided further that the Borrower may purchase, redeem or otherwise acquire Equity Interests and Equity Equivalents of the Borrower pursuant to this clause (iii) without regard to the restrictions set forth in the first proviso above for consideration consisting of (x) unsecured Indebtedness of the Borrower permitted under Section 7.01(xiv) and (y) the proceeds of key man life insurance;
(iv) Restricted Payments made by exchange for, or out of the proceeds of, a substantially concurrent Equity Issuance or any cash capital contribution to the Company; provided, however, that the amount of Net Cash Proceeds from such Equity Issuance that is utilized for such Restricted Payment will not be included in calculating the Available Amount;
(v) the payment of any dividend or distribution, or the consummation of any irrevocable redemption, within 60 days after the date hereof:
(a) of declaration of the Borrower will not declaredividend or distribution or giving of the redemption notice, pay as the case may be, if at such date of declaration or make any redemption notice such dividend, distribution or exchange redemption, as the case may be, would have complied with this Section 7.07;
(in cash, property vi) the declaration and payment of dividends or obligations) on or in respect of any shares distributions to holders of any class or series of Disqualified Capital Stock (now or hereafter outstanding) of the Borrower or on any of its Restricted Subsidiaries not prohibited by this Agreement;
(vii) the Borrower and each of its Restricted Subsidiaries may make additional Restricted Payments so long as the Available Amount Conditions have been met, (x) an aggregate amount after the Closing Date, together with any amounts used under Section 7.08(d)(i)(y), not to exceed $100,000,000 plus (y) the Available Amount;
(viii) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(ix) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that such new Equity Interests contain terms and provisions at least as advantageous to the Lenders in all respects material to their interests as those contained in the Equity Interests redeemed thereby;
(x) the Borrower may make Restricted Payments in the form of de minimis cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other rights with respect to any shares of any class of Capital Stock (now securities convertible into or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) exchangeable for Equity Interests of the Borrower;
(bxi) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any each of its Restricted Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to may make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making ordinary course of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered business pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held any employee non-qualified deferred compensation plan maintained by directors, officers or employees of Holdco or the Borrower or any of its Restricted Subsidiaries for the benefit of current and former the officers, employees and directors of the Borrower or any of its Restricted Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees ; and
(or their estates of beneficiaries under their estates), xii) in all cases only upon death, disability, retirement, termination of employment or pursuant addition to the terms of such stock option plan or any other agreement under which such shares of Capital Stockforegoing, options, related rights or similar securities were issued (collectively referred the Borrower and its Restricted Subsidiaries may make Restricted Payments in an aggregate amount after the Closing Date not to as aexceed $25,000,000.
Appears in 1 contract
Samples: Credit Agreement (Medassets Inc)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will notNo Credit Party shall, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not no Credit Party shall permit any of its Subsidiaries to, make any Restricted Payment, or make any deposit for any Restricted Payment, other than:
(a) payments by any Subsidiary of a Borrower to such Borrower or its direct parent (and, in the case of a Restricted Payment by a non-wholly owned Subsidiary, to a Borrower and any other Subsidiaries and to each other owner of Capital Stock of such Subsidiary based on their relative ownership interests of the foregoing purposes (the foregoing prohibited acts referred to in clause (arelevant class of Capital Stock), ;
(b) Restricted Payments by any Credit Party or any of its Subsidiaries to pay dividends with respect to its Capital Stock payable solely in additional shares of its common stock (other than Disqualified Capital Stock);
(c) above Restricted Payments by any Credit Party or in this clause any of its Subsidiaries to Parent to enable Parent to pay any applicable income or franchise Taxes then due and payable, to the extent such Taxes are attributable to the activities or income of the Borrowers and its Subsidiaries;
(d) are herein collectively referred regularly scheduled, nonaccelerated payments with respect to as "Restricted Payments"); providedIndebtedness subordinated to the Obligations (including, howeverwithout limitation, that,seller notes and earnout obligations) to the extent expressly permitted by the applicable subordination agreement or such other subordination terms with respect thereto;
(e) notwithstanding the provisions 2024 Convertible Notes Repurchase on the maturity date (as set forth in the 2024 Convertible Notes);
(f) redemptions, repurchases, retirements or other acquisitions of Capital Stock (i) deemed to occur on the exercise of options by the delivery of Capital Stock in satisfaction of the exercise price of such options or (ii) in consideration of withholding or similar taxes payable by any future, present or former officer, employee, director, member of management, or consultant (or their respective estates, executors, administrators, heirs, family members, legatees, distributees, spouses, former spouses, domestic partners and former domestic partners), including deemed repurchases in connection with the exercise of stock options or vesting of performance stock units or restricted stock units; provided, that, any Restricted Payments made pursuant to this clause (af) above, are not be made in cash;
(g) conversion of the Borrower shall be permitted to make Restricted Payments to Holdco 2024 Convertible Notes and/or the 2025 Convertible Notes into Qualified Capital Stock of Parent in accordance with the terms thereof;
(h) all mandatory or scheduled payments in respect of the Convertible Senior Notes;
(i) payment and/or satisfaction of the Existing Earnouts (whether by way of cash payments or issuance of Capital Stock of the Parent);
(j) the 2025 Convertible Notes Repurchase on the maturity date (as set forth in the 2025 Convertible Notes);
(k) to the extent necessary to enable Holdco to no Event of Default has occurred and is continuing at the time of such distribution (i) pay both before and after giving effect thereto), any Credit Party and any of its overhead expenses Subsidiaries may make distributions in an amount not sufficient to exceed $250,000 make payments (with cash or Shareholder Redemption Notes) on account of the purchase, redemption, or other acquisition or retirement of any shares of the Capital Stock of a Credit Party or Subsidiary from former employees, officers, or directors of the Credit Parties and their Subsidiaries (or any spouses, ex-spouses, beneficiaries or estates of any of the foregoing) which may be in the aggregate form of forgiveness of Indebtedness, and Parent may make such payments (with cash or Shareholder Redemption Notes) on account of the purchase, redemption, or other acquisition or retirement of any shares of its Capital Stock, and, in each case, make distributions to satisfy any tax liabilities arising in connection with such transactions; provided that the amount of such distributions and repurchases (including any such distributions or repurchases in the form of forgiveness of Indebtedness) may not exceed the sum of (x) $2,000,0003,000,000 in any Fiscal Year plus (y) the amount of the cash proceeds of any permitted issuance of Qualified Capital Stock received by the Parent or Evolent for the purpose of making such payments and used solely for such purpose plus (z) key man life insurance proceeds received by the Parent, Borrowers or any of their respective Subsidiaries during such Fiscal Year, ;
(iil) pay its taxes and [reserved];
(iiim) so long as (A) no Default shall have occurred and be continuing on the making of any Restricted Payment within 60 days after the date of declaration thereof, if at the date of such declaration such Restricted Payment is declared or to be made, nor would a Default result from the making have complied with another provision of such Restricted Payment, (B) after giving effect to this Section 9.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made;
(n) to the Borrower shall be in pro forma compliance with extent constituting Restricted Payments, the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date consummation of the payment of such Restricted Payment for which Transactions and the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aAmendment No. 1
Appears in 1 contract
Restricted Payments, etc. On and at all times after None of the date hereofGroup Companies will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) of such Person), except that:
(ai) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower may make Restricted Payments to the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower;
(bii) any non-Wholly-Owned Subsidiary of the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to may make Restricted Payments to Holdco the Borrower or to any Wholly-Owned Subsidiary of the Borrower or ratably to all holders of its outstanding Equity Interests;
(iii) Holdings and Intermediate Holdings may redeem or repurchase Equity Interests (or Equity Equivalents) or to make payments on notes issued in connection with the prior redemption or purchase of such Equity Interests and permitted pursuant to Section 7.01(xii) from (A) officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise or (B) other holders of Equity Interests or Equity Equivalents in Holdings and Intermediate Holdings, so long as the purpose of such purchase is to acquire stock for reissuance to new officers, employees and directors (or their estates) of any Group Company, to the extent necessary to enable Holdco to (i) pay its overhead expenses so reissued within 12 months of any such purchase; provided that in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as all such cases (A) no Default shall have occurred and be continuing on the date such Restricted Payment or Event of Default is declared then in existence or to be made, nor would a Default result from the making of such Restricted Paymentotherwise arise therefrom, (B) the aggregate amount of all cash distributed by the Borrower directly or indirectly to Holdings and Intermediate Holdings in respect of all such shares so redeemed or repurchased (or otherwise spent by Holdings and Intermediate Holdings) does not exceed $2,000,000 in any fiscal year of Holdings (with unused amounts being carried forward to succeeding fiscal years) or $10,000,000 in the aggregate from and after giving effect the Closing Date, and provided further that Holdings and Intermediate Holdings may purchase, redeem or otherwise acquire Equity Interests and Equity Equivalents of Holdings and Intermediate Holdings pursuant to this clause (iii) without regard to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants restrictions set forth in Section 7.2.4 the first proviso above for consideration consisting of the proceeds of key man life insurance obtained for the most recent full Fiscal Quarter immediately preceding purposes described in this clause (iii);
(iv) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the date Borrower may make cash Restricted Payments, directly or indirectly, to Holdings and Intermediate Holdings, if Holdings and Intermediate Holdings promptly use such proceeds for the purposes described in clause (iii) above;
(v) the Borrower and Intermediate Holdings may make cash Restricted Payments, directly or indirectly, to Intermediate Holdings or Holdings (as the case may be) for the purpose of paying, and in amounts not to exceed the amount necessary to pay, (A) the then currently due fees and expenses of Holdings' counsel, accountants and other advisors and consultants, and other operating and administrative expenses of Holdings (including employee and compensation expenditures and other similar costs and expenses) incurred in the ordinary course of business that are for the benefit of, or are attributable to, or are related to, including the financing or refinancing of, Holdings' Investment in the Borrower and its Subsidiaries, (B) the then currently due fees and expenses of Holdings' independent directors and observers and (C) the then currently due taxes payable by Holdings solely on account of the income of Holdings related to its Investment in the Borrower and its Subsidiaries and the reasonable expenses of preparing returns reflecting such taxes; provided that Holdings agrees to be obligated to contribute to the Borrower any refund Holdings receives relating to any such taxes and (D) so long as no Default or Event of Default is then in existence or would arise therefrom, other fees and expenses permitted under Section 7.09;
(vi) the Borrower may pay directly or indirectly to Intermediate Holdings or Holdings the amount that Holdings is required to pay for franchise, federal, state, local or other taxes as the common parent of an affiliated group (within the meaning of Section 1504 of the Code) and quarterly or annually for other taxes incurred by Intermediate Holdings or Holdings; provided that (A) such payments with respect to income taxes may be made only in respect of the period during which the Borrower is consolidated with Holdings for purposes of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, taxes and (CB) an Authorized Officer no such payment by the Borrower may be paid until receipt by the Administrative Agent of a certificate of the chief financial officer or chief accounting officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory acceptable to the Agents (including a calculation of the Administrative Agent demonstrating compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses foregoing provisions (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively payments being herein referred to as a("Permitted Tax Dividends").
(vii) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the Borrower may make Restricted Payments to Holdings, directly or indirectly, provided that (A) all proceeds thereof are applied by Holdings solely for the purposes of Section 7.08(d); and (B) no such Restricted Payment shall be made if an interest payment in respect of the Junior Debentures could not, but for such Restricted Payment, be made in accordance with Section 7.08(d);
(viii) Holdings and its Subsidiaries may make Restricted Payments made with Net Cash Proceeds of one or more Qualifying Equity Issuances within three Business Days following the receipt thereof; provided that, after giving effect to such Restricted Payment, no Change of Control shall have occurred;
(ix) Holdings and Intermediate Holdings may make noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; and
(x) cash payments by Holdings and Intermediate Holdings in lieu of the issuance of fractional shares upon exercise or conversion of Equity Equivalents.
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will notNo Credit Party shall, and will not permit any of its Subsidiaries to, (i) make any payment no Credit Party shall cause or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any Restricted Payment, or make any deposit for any Restricted Payment, other than:
(a) cash dividends and distributions to Holdings or any other Parent Company to be used for (i) customary director indemnification payments to the directors of such Person, (ii) reasonable and customary fees to outsidenon-executive directors of such Parent Company that are notwhich, prior to the foregoing purposes date of consummating a Qualified IPO, shall exclude the fees of such directors that are affiliated with the Sponsor and be in an aggregate amount not to exceed $100,000 in any fiscal year, (iii) (x) legal, financial and accounting matters and similar customary operating and administrative costs and expenses related to Holdings and its Subsidiaries and (y) franchise taxes, and other fees, tax and expenses in an amount, and solely to the foregoing prohibited acts referred extent necessary and required, to in maintain Holdings’ or any other Parent Company’s corporate existence; provided that, prior to the date of consummating a Qualified IPO, the aggregate amount of Restricted Payments under this clause (a), iii) shall not exceed $450,000 in any fiscal year;
(b) cash dividends and distributions by any Subsidiary of any Credit Party to such Credit Party (other than Holdings); provided that, with respect to any such Subsidiary that is not a wholly-owned Subsidiary of a Credit Party, such dividend or distribution shall be made to each holder of such Subsidiary’s Capital Stock pro rata based on such holders’ relative ownership interests in such Subsidiary;
(c) above Restricted Payments by any Credit Party or any of its Subsidiaries that are payable solely in this clause the form of Qualified Capital Stock of such Person;
(d) are herein collectively referred Restricted Payments to repurchase, redeem or otherwise acquire or retire for value any Capital Stock of Holdings or EBSany Holdings Parent held by any employee, director, consultant or officer of any Credit Party or Subsidiary of any Credit Party pursuant to any employee equity subscription agreement, stock option agreement, stock ownership arrangement or any similar arrangement upon the death, disability, retirement or termination of employment of such employee, director, consultant or officer to the extent (i) not exceeding $100,000 in any fiscal year or $500,000 in the aggregate over the term of this Agreement, (ii) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (iii) on a Pro Forma Basis immediately after giving effect to any such Restricted Payment, the Credit Parties and their Subsidiaries shall be in compliance with the Financial Covenants (in each case recomputed as "of, and for the four (4) fiscal quarter period ending on, the last day of the most recent fiscal quarter for which financial statements have been delivered or were required to be delivered pursuant to Section 8.01), and (iv) immediately after giving effect to such Restricted Payments"); providedPayment, however, that,the Available Revolving Loan Amount shall be not less than $2,500,000;
(e) notwithstanding prior to or on the provisions date of clause (a) aboveconsummating a Qualified IPO, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the payment to the Sponsor (directly or indirectly from or through any Credit Party or EBS Parent) of (x) management fees pursuant to the Management Agreement as in effect on the Closing Date (or as modified in a manner not prohibited hereunder) in an aggregate amount not to exceed per fiscal year the greater of (ia) $500,000 and (iib) two percent (2%) of the total Consolidated EBITDA of the Credit Parties in such fiscal year and, (y) transaction fees set forth in the Management Agreement as in effect on the Closing Date (or as modified in a manner not prohibited hereunder), in an amount not to exceed $250,000 2,000,000 in the aggregate during the term of this Agreement; provided that, with respect to this clause (i), if all or part of the management fees and transaction fees under this clause (i) cannot be paid in accordance with this Agreement, the Management Subordination Agreement and/or the other Credit Documents, then such management fees and transaction fees that are not paid shall be accrued, on a cumulative basis, and shall be payable in subsequent periods to the extent such payments may otherwise be made in accordance with the Credit Agreement (including being subject to, for the avoidance of doubt, the foregoing requirements of this clause (i)), the Management Subordination Agreement and the other Credit Documents; provided further that, at the time the Credit Parties elect to pay such accrued management fees and transaction fees and both immediately before and after giving effect to any Fiscal Yearsuch payment, the Credit Parties shall be in compliance with the Financial Covenants recomputed on a Pro Forma Basis as of, and for the four (4) fiscal quarter period ending on, the last day of the most recent fiscal quarter for which financial statements have been delivered or were required to be delivered pursuant to this Agreement; and (ii) pay its taxes so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the payment to the Sponsor (directly or indirectly from or through any Credit Party or Parent) of a termination fee in an aggregate amount not to exceed $1,000,000 in connection with the termination of the Management Agreement in connection with consummating a Qualified IPO; provided that, in the event any payment is made pursuant to this clause (ii), no expense reimbursements contemplated under the Management Agreement (as described in the following clause (iii)) shall have been made, or may be made, directly or indirectly by any Credit Party to the Sponsor in connection with the termination of the Management Agreement and the consummation of the Qualified IPO; and (iii) indemnification and expense reimbursement payments pursuant to the Management Agreement as in effect on the Closing Date (or as modified in a manner not prohibited hereunder); 112
(f) to the extent due and payable on a non-accelerated basis and permitted under the applicable subordination provisions thereof or applicable subordination agreement to which it is subject, as applicable, regularly scheduled payments in respect of Permitted Earnouts;
(g) so long as each of Borrower and Holdings is a flow-through entity for U.S. federal income tax purpose, Permitted Tax Distributions;
(h) Restricted Payments by or through the Credit Parties in an amount not to exceed the Available Amount immediately prior to making such Restricted Payment; provided that, at the time the Credit Parties elect to make such Restricted Payment and both immediately before and after giving effect to any such payment, (i) no Default or Event of Default shall exist or would result therefrom and (ii) (x) the Credit Parties shall be in compliance with the Financial Covenants and (y) the Total Leverage Ratio shall not exceed 2.25 to 1.00, in each case, recomputed on a Pro Forma Basis as of, and for the four (4) fiscal quarter period ending on, the last day of the most recent fiscal quarter for which financial statements have been delivered or were required to be delivered pursuant to this Agreement;
(i) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of Holdings or Holdings Parent, provided that such payments shall not exceed $500,000 in any fiscal year;
(j) additional Restricted Payments by or through the Credit Parties in an amount not to exceed $500,000 during the term of this Agreement so long as (Ax) no Default or Event of Default shall have occurred and be continuing on at the date time of such Restricted Payment is declared or would result therefrom, (y) immediately after giving effect to be made, nor would a Default result from the making of such Restricted Payment, the Available Revolving Loan Amount shall be not less than $2,500,000 and (Bz) both immediately before and after giving effect to the making of any such Restricted Payment Payment, the Borrower Credit Parties shall be in pro forma compliance on a Pro Forma Basis with the covenants set forth in Section 7.2.4 Financial Covenants recomputed as of, and for the most recent full Fiscal Quarter immediately preceding four (4) fiscal quarter period ending on, the date last day of the payment of such Restricted Payment most recently ended fiscal quarter for which the relevant financial information has statements have been delivered or were required to be delivered pursuant to clause this Agreement);
(ak) or clause (b) of Section 7.1.1, cash dividends and (C) an Authorized Officer of the Borrower shall have delivered a certificate distributions to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan Holdings or any other agreement under Parent Company in an amount not to exceed $4,250,000 on or prior to February 29, 2020 so long as (w) no portion of such cash dividends and distributions shall be funded with the proceeds of Indebtedness, (x) no Default or Event of Default shall have occurred and be continuing at the time of such cash dividend and distribution or would result therefrom, (y) immediately after giving effect to such cash dividends and distribution, (i) the Available Revolving Loan Amount shall be not less than $5,000,000 and (ii) the Qualified Cash and Cash Equivalents of the Credit Parties shall not be less than $1,250,000 and (z) both immediately before and after giving effect to any such cash dividends and distributions, the Credit Parties shall be in compliance on a Pro Forma Basis with the Financial Covenants recomputed as of, and for the four (4) fiscal quarter period ending on, the last day of the most recently ended fiscal quarter for which financial statements have been delivered or were required to be delivered pursuant to this Agreement); 113
(l) cash dividends and distributions to Holdings or any other Parent Company in an amount not to exceed $3,500,000 on or prior to February 26, 2021 so long as (w) no portion of such shares cash dividends and distributions shall be funded with the proceeds of Capital StockIndebtedness, options(x) no Default or Event of Default shall have occurred and be continuing at the time of such cash dividend and distribution or would result therefrom, related rights (y) immediately after giving effect to such cash dividends and distribution, (i) the Available Revolving Loan Amount shall be not less than $5,000,000 and (ii) the Qualified Cash and Cash Equivalents of the Credit Parties shall not be less than $9,000,000 and (z) both immediately before and after giving effect to any such cash dividends and distributions, the Credit Parties shall be in compliance on a Pro Forma Basis with the Financial Covenants recomputed as of, and for the four (4) fiscal quarter period ending on, the last day of the most recently ended fiscal quarter for which financial statements have been delivered or similar securities were issued required to be delivered pursuant to this Agreement); and
(collectively referred m) cash dividends and distributions made on the Fourth Amendment Effective Date to as aHoldings or any other Parent Company in an aggregate amount not to exceed $60,316,401.12.
Appears in 1 contract
Restricted Payments, etc. On and at all times after None of the date hereofRestricted Group Companies will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests or Equity Equivalents (exclusive of Debt Equivalents) of such Person), except that:
(ai) any Restricted Subsidiary may make Restricted Payments to the Borrower or to any other Restricted Subsidiary that is Wholly Owned Subsidiary of the Borrower; provided that in the case of a dividend or other distribution by a non-Wholly Owned Restricted Subsidiary, such dividends or distributions may also be made ratably to the holders of Equity Interests in such non-Wholly Owned Restricted Subsidiary with respect to their Equity Interests;
(ii) any direct or indirect non-Wholly Owned Subsidiary of the Borrower that is a Restricted Subsidiary may make Restricted Payments (A) to the Borrower, (B) to any Wholly Owned Subsidiary of the Borrower that is a Restricted Subsidiary or (C) to any Restricted Subsidiary of the Borrower included in any consolidated, affiliated, combined or unitary group filing a Tax return with the Borrower or any Restricted Subsidiary of the Borrower, but only to the extent and in an amount necessary for such Subsidiary or, ultimately, the Borrower, to discharge any Tax liability attributable to such non-Wholly Owned Subsidiary;
(iii) the Borrower will not declaremay make cash Restricted Payments solely to purchase, pay redeem, retire, acquire, cancel, terminate or repurchase Equity Interests (or Equity Equivalents) in the Borrower or to make payments on any dividendnotes issued to redeem such Equity Interests or Equity Equivalents from
(I) present or former officers, distribution employees, directors, managers or exchange consultants of any Restricted Group Company (or their estates, spouses or former spouses, other immediate family members, estate planning vehicles, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) following the death, permanent disability, retirement or termination of employment of any such Person or otherwise, or (II) so long as no Event of Default has occurred and is continuing or would result therefrom, other holders of Equity Interests or Equity Equivalents in cash, property or obligations) on or the Borrower; provided that in all such cases the aggregate amount of all cash paid in respect of all such Equity Interests (and Equity Equivalents) so redeemed or repurchased and all such payments on any shares such notes does not exceed the sum of $15,000,000 in any class calendar year (with any unused amount in any calendar year carried forward and available in the next two succeeding years), plus the cash proceeds of Capital Stock (now or hereafter outstanding) of key man life insurance policies received by the Borrower or on and its Restricted Subsidiaries after the Closing Date;
(iv) any warrants, options or other rights with respect to Restricted Group Company may make additional Restricted Payments in an aggregate amount during the term of this Agreement not exceeding the amount of Net Cash Proceeds received from any shares of any class of Capital Stock (now or hereafter outstanding) substantially contemporaneous Equity Issuance of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications an Equity Issuance of its stock into additional or other shares of its common stockDisqualified Capital Stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets Not Otherwise Applied immediately prior to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) time of the Borrower, making of such Restricted Payment so long as no Event of Default then exists or would be caused thereby;
(v) the Borrower may make cash Restricted Payments constituting de minimis cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other rights with respect to any shares of any class of Capital Stock (now securities convertible into or hereafter outstanding) exchangeable for Equity Interests of the BorrowerBorrower or in connection with any dividend, split or combination of Equity Interests or a Permitted Acquisition;
(bvi) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) Restricted Group Companies may make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make additional Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 the Available Amount, provided that (x) no Event of Default is continuing at the time of such Restricted Payment or would result therefrom and (y) except for Restricted Payments made in the aggregate in any Fiscal Year, reliance on clauses (iii) pay its taxes and or (iii) so long as (A) no Default shall have occurred and be continuing of the definition of “Available Amount”, the Total Net Leverage Ratio does not exceed 4.50 : 1.00 on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) Pro Forma Basis after giving effect to the making of such Restricted Payment Payment;
(vii) to the Borrower shall be in pro forma compliance with extent constituting Restricted Payments, the covenants set forth in Restricted Group Companies may enter into and consummate transactions expressly permitted by Section 7.2.4 for 7.04, Section 7.05, Section 7.06 or Section 7.09;
(viii) the most recent full Fiscal Quarter immediately preceding Restricted Group Companies may pay dividends or distributions within 60 days of the date of declaration thereof, if at the date of declaration thereof such payment would have complied with the provisions of such this Agreement;
(ix) to the extent constituting Restricted Payment for which Payments, the relevant financial information has been delivered pursuant to clause (a) or clause (b) Restricted Group Companies may pay contingent liabilities in respect of Section 7.1.1any adjustment of purchase price, earn-outs, deferred compensation and (C) an Authorized Officer similar obligations of the Borrower shall have delivered a certificate and its Subsidiaries incurred in connection with acquisitions consummated prior to the Agents Closing Date, Permitted Acquisitions, Permitted Joint Ventures, Investments permitted by Section 7.06 and Asset Dispositions;
(x) repurchases of Equity Interests in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any Subsidiary deemed to occur upon the exercise of its Subsidiariesstock options or warrants may be made if such Equity Interests represent a portion of the exercise price of such options or warrants;
(xi) the Borrower may (a) accept Equity Interests in the Borrower to satisfy the withholding tax obligations of the holder of such Equity Interests upon settlement of such Equity Interests or (b) effect a net settlement of Equity Interests in the Borrower upon the exercise of such Equity Interests to cover the exercise price or tax withholding of such Equity Interests, in each case in an aggregate amount not to exceed $2,000,000 per year,
(xii) the Borrower and any Restricted Subsidiaries may repurchase (i) Equity Interests upon the exercise of Equity Equivalents if such Equity Interests represent a portion of the exercise price of such Equity Equivalents and (ii) Equity Interests from any current or options on any such shares former officer, director, employee or related stock appreciation rights or similar securities owned by such directors, officers or employees consultant (or their estates current or former spouses, estates, estate planning vehicles and family members) or other holder of beneficiaries under their estatesEquity Interests to comply with Tax withholding obligations relating to Taxes payable by such person upon the grant or award of such Equity Interests (or upon vesting thereof), in all cases only upon death, disability, retirement, termination ;
(xiii) the Restricted Group Companies may make Restricted Payments to the extent permitted by Section 7.08; and
(xiv) the purchase by the Borrower or any Restricted Subsidiary of employment or any remaining outstanding Equity Interests of any Subsidiary acquired to consummate a permitted Investment structured as a tender offer pursuant to the terms which not less than a majority of such stock option plan Subsidiary’s Equity Interests has been acquired by the Borrower or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aRestricted Subsidiary.
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower Holdco will not, and will not permit any of its Restricted Subsidiaries to, declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of Holdco or the Borrower Company or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of Holdco or the Borrower Company (other than (i) dividends or distributions payable in its common stock Capital Stock or warrants to purchase its common stock or Capital Stock, (ii) splits or reclassifications of its stock into additional or other shares of its common stockCapital Stock and (iii) the exchange of preferred stock referred to in clause (iii) of the definition of Preferred Stock for preferred stock referred to in clause (ii) of the definition of Preferred Stock) or apply, or permit any of its Restricted Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Restricted Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of Holdco or the Borrower, Company or warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of Holdco or the BorrowerCompany;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) other than any obligation arising under or in respect refinancing of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to Senior Subordinated Bridge Notes with the purchase, redemption, exchange, sinking fund or other retirement proceeds of the Seller Note;
(c) the Borrower Senior Subordinated Notes, Holdco will not, and will not permit any of its Restricted Subsidiaries to, to (i) directly or indirectly, make any payment or prepayment of principal of, or premium on, if any, or make any payment of interest on, any Senior Note Subordinated Indebtedness, on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior NoteSubordinated Indebtedness, or which would violate the subordination provisions of such Senior NoteSubordinated Indebtedness, or (ii) make any payment to redeem, repurchase purchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes Subordinated Indebtedness (the foregoing prohibited acts referred to in clause CLAUSES (a), ) and (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted PaymentsRESTRICTED PAYMENTS"); providedPROVIDED, howeverHOWEVER, that,
(ec) notwithstanding the provisions of clause CLAUSES (a) AND (b) above, the Borrower Company shall be permitted to make Restricted Payments to Holdco (x) pursuant to the Administrative Services Agreement which payments shall, to the extent applicable, be promptly applied by Holdco to meet its obligations under the Retained Interests and (y) to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Yearexpenses, (ii) make payments in respect of taxes, (iii) make payments in respect of the Senior Subordinated Bridge Notes or the Senior Subordinated Notes, (iv) make payments in respect of expenses, fees and other costs in connection with litigations, (v) make payments in respect of compensation expenses in respect of any period prior to January 1, 2000, (vi) make payments in respect of employee benefit plans or other similar arrangements, (vii) pay its taxes fees and expenses in connection with the Transaction and (iiiviii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default (including in respect of the financial covenants set forth in SECTION 7.2.4) result from the making of such Restricted Payment, (Bb) after giving effect to the making of such Restricted Payment the Borrower Payment, Holdco shall be in pro forma PRO FORMA compliance with the covenants covenant set forth in Section CLAUSE (b) of SECTION 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment making of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause CLAUSE (a) or clause CLAUSE (b) of Section SECTION 7.1.1, and (Cc) an Authorized Officer of the Borrower Company shall have delivered a certificate to the Agents Administrative Agent in form and substance satisfactory to the Agents Administrative Agent (including a calculation of the Holdco's PRO FORMA compliance with the covenants covenant set forth in Section 7.2.4CLAUSE (b) of SECTION 7.2.4 in reasonable detail) certifying as to the accuracy of clauses CLAUSE (e)(iii)(Ac)(y)(viii)(a) and CLAUSE (e)(iii)(Bc)(y)(viii)(b) above, purchasethe Company may make Restricted Payments to Holdco to enable Holdco to, redeemand Holdco may, repurchase, redeem or otherwise acquire or otherwise retire for value shares any Capital Stock of Holdco (including Preferred Stock), or any warrant, option or other right to acquire any such Capital Stock of Holdco, held by any member of management or an employee or Independent Contractor of Holdco or any of its Restricted Subsidiaries pursuant to any employment agreement, management equity subscription agreement, restricted stock plan, stock option agreement or other similar arrangement so long as the total amount of such repurchases, redemptions, acquisitions, retirements and payments shall not exceed (I) $5,000,000 in any calendar year (with unused amounts in any calendar year being carried forward to succeeding calendar years subject to a maximum (without giving effect to the following clause (II)) of $10,000,000 in any calendar year) PLUS (II) the aggregate cash proceeds received by Holdco during such calendar year from any reissuance of Capital Stock of Holdco or Preferred Holdco, and warrants, options and other rights to acquire Capital Stock of the Borrower held Holdco by directors, officers or employees of Holdco or the Borrower Company to members of management and employees and Independent Contractors of Holdco and its Restricted Subsidiaries (to the extent such proceeds are not otherwise required to be applied pursuant to CLAUSE (d) of SECTION 3.1.1 and to the extent such proceeds do not represent the proceeds of loans made by Holdco or the Company to such members of management or employees);
(d) notwithstanding the provisions of CLAUSES (a) and (b) above, (i) Holdco and its Restricted Subsidiaries shall be permitted to make the Restricted Payments included in the Transaction, (ii) Holdco shall be permitted to make payments in respect of statutory appraisal rights (and any settlement thereof) exercised by holders of outstanding Capital Stock of Holdco in connection with the Merger, (iii) the Company may pay a non-cash dividend to Holdco consisting solely of a transfer of all or a portion of the Intercompany Loan, (iv) after the Closing Date, Holdco may purchase common stock of Holdco from the Equity Investors as long as such common stock is resold to officers, directors, employees and Independent Contractors of Holdco and its Restricted Subsidiaries for cash proceeds other than any such proceeds funded with advances by Holdco or any of its SubsidiariesRestricted Subsidiaries and (v) after the fifth anniversary of the Closing Date, or options on any such shares or related stock appreciation rights or similar securities owned by such directorsthe Company may make Restricted Payments to Holdco for the purpose of paying, officers or employees (or their estates of beneficiaries under their estates)and Holdco may pay, in all cases only upon death, disability, retirement, termination of employment or pursuant cash dividends with respect to the terms Preferred Stock in an annual amount in any Fiscal Year not to exceed 50% of Excess Cash Flow for the previous Fiscal Year so long as, at the time of such stock option plan payment, the Leverage Ratio is less than or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred equal to as a3.5 to 1.0.
Appears in 1 contract
Samples: Credit Agreement (Merrill Corp)
Restricted Payments, etc. On and at all times after None of the date hereofGroup Companies will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) of such Person), except that:
(ai) any Wholly-Owned Subsidiary of the Borrower will not declare, pay may make Restricted Payments to the Borrower or make to any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower or on any warrants, options or other rights with respect to any shares of Subsidiary Guarantor;
(ii) any class of Capital Stock (now or hereafter outstanding) non-Wholly-Owned Subsidiary of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to may make Restricted Payments to Holdco the Borrower or to any Wholly-Owned Subsidiary of the extent necessary Borrower or ratably to enable Holdco to (i) pay all holders of its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and outstanding Equity Interests;
(iii) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the Borrower may make cash Restricted Payments to Holdings to redeem or repurchase Equity Interests (or Equity Equivalents) from (A) officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise, or (B) other holders of Equity Interests or Equity Equivalents in Parent Holdings; provided that in all such cases (1) no Default shall have occurred or Event of Default is then in existence or would otherwise arise therefrom, (2) the aggregate amount of all cash paid in respect of all such shares so redeemed or repurchased does not exceed $25,000,000 in the aggregate from and be continuing on after the date such Closing Date;
(iv) the Borrower may make cash Restricted Payment is declared Payments to Holdings in amounts not to exceed the amount necessary to pay, (A) the then currently due fees and expenses of Holdings’ and Parent Holdings’ counsel, accountants and other advisors and consultants, and other operating and administrative expenses of Holdings and Parent Holdings (including employee and compensation expenditures, directors’ and officers’ insurance premiums and other similar costs and expenses) incurred in the ordinary course of business that are for the benefit of, or are attributable to, or are related to, including the financing or refinancing of, Parent Holding’s Investment in the Borrower and its Subsidiaries, up to be made, nor would a Default result from the making an aggregate amount of such Restricted Payment$1,000,000 for each fiscal year, (B) the then currently due fees and expenses of Holdings’ and Parent Holdings’ independent directors, (C) the then currently due taxes payable by Holdings and Parent Holdings solely on account of the income of Holdings and Parent Holdings related to their respective Investment in the Borrower and its Subsidiaries and the reasonable expenses of preparing returns reflecting such taxes; provided that the Borrower shall be entitled to any refund Holdings or Parent Holdings receives relating to any such taxes and (D) to make cash payments in lieu of the issuance of fractional shares representing insignificant interests with respect to the exercise of warrants, options or other securities convertible or exchangeable for Equity Interests of Parent Holdings;
(v) the Borrower may make cash Restricted Payments to Holdings in amounts not to exceed the amount that is the lesser of (i) the amount necessary to pay the amount that the Borrower would have been required to pay for federal, state, local or other taxes on income if it were deemed to be the common parent of an affiliated group (within the meaning of Section 1504 of the Code) of which only it and its Subsidiaries were members and (ii) the net amount of the relevant tax that Parent Holdings actually owes to the relevant taxing authority; provided that (x) such payments may be made only in respect of the period during which the Borrower is consolidated with Holdings and Parent Holdings for purposes of the payment of such taxes and (y) such payments attributable to the income of any Unrestricted Subsidiary may be made only to the extent that the Unrestricted Subsidiary has made cash payments for such purpose to the Borrower or its Restricted Subsidiaries;
(vi) other Restricted Payments not otherwise permitted under this Section 7.07, in an amount not to exceed, together with any amounts utilized to prepay Indebtedness pursuant to Section 7.08(b)(iii), (A) $50,000,000, plus (B) so long as after giving effect to the making of such Restricted Payment Payment, (1) no Event of Default shall have occurred and be continuing, and (2) the Borrower shall be in pro forma compliance with Total Leverage Ratio on a Pro-Forma Basis as of the covenants set forth in Section 7.2.4 for last day of the most recent full Fiscal Quarter immediately preceding the date period of the payment four consecutive fiscal quarters in respect of such Restricted Payment for which the relevant financial information has statements have been delivered pursuant to clause Section 6.01 shall not be greater than 3.0:1.0, the Available Amount at such time; and
(avii) or clause (b) of Section 7.1.1, and (C) an Authorized Officer the Borrower may make cash Restricted Payments to Holdings after the consummation of the Borrower shall have delivered a certificate Acquisition in respect of the Escrow Funding including costs and expenses relating to the Agents in form and substance satisfactory to the Agents Escrow Funding; and
(including a calculation of the compliance with the covenants set forth in Section 7.2.4viii) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held and it Restricted Subsidiaries may make Restricted Payments not otherwise permitted by directors, officers or employees of Holdco or this Section 7.07 in an aggregate amount at any time outstanding not exceeding the Borrower or any of its Subsidiaries, or options on any Cumulative Equity Amount at such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as atime;
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (iother than dividends payable solely in non-redeemable common stock or comparable common equity interests of the Borrower or any such Subsidiary, as the case may be) make or return any payment equity capital to, its stockholders, partners, members or prepayment of principal of, other equity holders or authorize or make any other distribution, payment or delivery of interest onproperty or cash to its stockholders, partners, members or other equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any Senior Note on shares of any day class of its capital stock or other than the statedEquity Interests, scheduled date now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such payment shares or prepayment set forth in the documents and instruments memorializing such Senior Noteother Equity Interests), or which would violate set aside any funds for any of the subordination provisions of such Senior Noteforegoing purposes, or (ii) redeem, repurchase or defease any Senior Note; and
(d) and the Borrower will not, and will not permit any of its Subsidiaries to, make to purchase or otherwise acquire for a consideration any deposit for shares of any class of the capital stock or other Equity Interests of any direct or indirect parent of such Subsidiary now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock or other Equity Interests) (all of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b“Dividends”) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, except that,:
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) (x) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower and (y) any non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its overhead expenses in an amount not to exceed $250,000 shareholders generally so long as the Borrower or its Subsidiary which owns the Equity Interest in the aggregate Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interests in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Subsidiary); provided that any Fiscal Year, Dividend made pursuant to the preceding clause (x) by any Credit Party to any Wholly-Owned Subsidiary that is not a Credit Party may only be made if (A) (I) no Specified Default and no Event of Default then exists or would result therefrom and (II) such Wholly-Owned Subsidiary promptly distributes and/or transfer any Property received pursuant to such Dividend (directly or indirectly through other Wholly-Owned Subsidiaries) to a Credit Party or (B) the Subsidiary making such Dividend is not a Credit Party;
(ii) pay its taxes and (iii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) may redeem or clause (b) of Section 7.1.1, and (C) an Authorized Officer purchase shares of the Borrower shall have delivered a certificate Common Stock or options to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of purchase the Borrower Common Stock, held by directors, former officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon Subsidiaries following the death, disability, retirement, retirement or termination of employment of such officers or employees, provided that (x) the only consideration paid by the Borrower in respect of such redemptions and/or purchases shall be cash, (y) the aggregate amount paid by the Borrower in cash in respect of all such redemptions and/or purchases shall not exceed $10,000,000 in any Fiscal Year of the Borrower, and (z) at the time of any redemption or purchase pursuant to this Section 10.06(ii), no Specified Default or Event of Default shall then exist or result therefrom;
(iii) the Borrower may pay regularly scheduled Dividends on Qualified Preferred Stock issued by it pursuant to the terms thereof solely through the issuance of additional shares of such stock option plan Qualified Preferred Stock rather than in cash;
(iv) the Borrower may make repurchases of Equity Interests of the Borrower or any other agreement Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants to the extent such Equity Interests represent a portion of the exercise price of such options or warrants;
(v) the Borrower may make repurchases of Equity Interests of the Borrower in lieu of the issuance of fractional shares upon the exercise of options or warrants to purchase Borrower Common Stock;
(vi) the Borrower may make distributions of rights to holders of Borrower Common Stock pursuant to a customary shareholder rights plan and the redemption of such rights for nominal consideration;
(vii) the Borrower may make additional Dividends not otherwise permitted under which this Section 10.06 in an aggregate after the Amendment No. 3 Effective Date not to exceed $25,000,000; and
(viii) so long as the Payment Conditions are satisfied both before and after giving effect to the payment of such shares of Capital StockDividends, options, related rights or similar securities were issued (collectively referred to as athe Borrower and its Subsidiaries may pay additional Dividends not otherwise permitted under this Section 10.06.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Restricted Payments, etc. On and at all times after None of the date hereofConsolidated ------------------------ Parties will, or will permit any of their respective Subsidiaries to, declare or pay any Restricted Payments, except that:
(ai) the Borrower will not declarea Consolidated Party may pay dividends payable solely in Capital Stock, pay or make of such Person;
(ii) subject to clause (v) below, any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Subsidiary of the Borrower ---------- may pay Restricted Payments to the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower;
(biii) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the Borrower will not may pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or cash dividends to the Parent and cash distributions in respect of the Seller Note Borrower Preferred Interests to ASC and will not apply the Parent and ASC may in turn pay cash dividends to Holdings if Holdings promptly uses the proceeds to redeem or permit repurchase Capital Stock (or options to purchase such Capital Stock) from (A) officers, managing directors, employees and directors of any Consolidated Party (or their estates) upon the death, permanent disability, retirement or termination of its Subsidiaries employment of any such Person or otherwise in accordance with (x) the Securityholders' Agreement and (y) any stock option plan or any employee stock ownership plan maintained by Holdings, or (B) other holders of Capital Stock of Holdings, so long as the purpose of such purchase is to apply acquire Capital Stock for reissuance to new officers, managing directors, employees and directors (or their estates) of any of its fundsConsolidated Party, property or assets to the extent so reissued within 12 months of any such purchase, redemption, exchange, sinking fund ; provided that -------- in all such cases the aggregate amount of all cash dividends paid in respect of all such shares so redeemed or other retirement repurchased does not exceed $3,000,000 during any fiscal year of the Seller NoteBorrower;
(civ) the Borrower will notmay distribute cash to the Parent and ASC (and the Parent may distribute cash to Holdings), in an amount sufficient (A) to allow ASC to pay, and will not allow Holdings to make distributions to the owners of the Capital Stock of Holdings (the "Holdings Owners") sufficient to permit --------------- each Holdings Owner to pay, the Theoretical Tax on the amount of the taxable income of the Borrower and its Subsidiaries which is allocated to ASC or the Holdings Owner, as applicable, for federal income tax purposes, without regard to the individual tax status of any Holdings Owner or ASC ("Permitted Tax Dividends") and (B) to pay franchise taxes and other fees ----------------------- required to maintain its existence and reasonable general administrative costs and expenses, including, without limitation, directors fees and expenses and administrative, legal and accounting services provided by third parties, actually incurred by Holdings or ASC, as applicable;
(v) the Recapitalization shall be permitted;
(vi) the payment of any dividend by a Consolidated Subsidiary of the Borrower to the holders of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note common Capital Stock on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Notea pro-rata basis shall be permitted; and
(dA) repurchases of Capital Stock deemed to occur upon the Borrower will not, cashless exercise of stock options and will not permit any warrants; and (B) cash paid in lieu of its Subsidiaries to, make any deposit fractional Equity Interests (or dividends or distributions for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (bsuch purpose) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an aggregate amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower 50,000 shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as apermitted.
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower No Credit Agreement Party will, nor will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to applyto, declare or pay any dividends (other than dividends payable solely in non-redeemable common stock or comparable common equity interests of Holdings or any such Subsidiary, as the case may be) or return any equity capital to, its fundsstockholders, partners, members or other equity holders or authorize or make any other distribution, payment or delivery of property or assets cash to the purchaseits stockholders, redemptionpartners, exchange, sinking fund members or other retirement ofequity holders as such, or agree redeem, retire, purchase or permit any of its Subsidiaries to purchaseotherwise acquire, redeem directly or exchangeindirectly, for a consideration, any shares of any class of Capital Stock (its capital stock or other Equity Interests, now or hereafter outstanding) outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares or other Equity Interests), or set aside any funds for any of the Borrowerforegoing purposes, warrants, options and no Credit Agreement Party will permit any of its Subsidiaries to purchase or other rights with respect to otherwise acquire for consideration any shares of any class of Capital Stock (the capital stock or other Equity Interests of Holdings or any other Subsidiary, as the case may be, now or hereafter outstandingoutstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock or other Equity Interests) (all of the Borrower;
(bforegoing "Dividends") the Borrower will not pay or otherwise reimburse (in cash, property or obligations) make any obligation arising under or payments in respect of the Seller Note and will not apply any outstanding Shareholder Subordinated Notes or permit any of its Subsidiaries to apply any of its fundsIntercompany Debt, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;except that:
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make (x) any payment Subsidiary of the U.S. Borrower may pay Dividends to the U.S. Borrower or prepayment any Wholly-Owned Subsidiary of principal of, the U.S. Borrower and (y) any non-Wholly-Owned Subsidiary of the U.S. Borrower may pay cash Dividends to its shareholders generally so long as the U.S. Borrower or make any payment of interest on, any Senior Note on any day other than its respective Subsidiary which owns the stated, scheduled date for such payment or prepayment set forth Equity Interest in the documents Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interests in the Subsidiary paying such Dividends and instruments memorializing such Senior Notetaking into account the relative preferences, or which would violate if any, of the subordination provisions various classes of Equity Interests of such Senior Note, Subsidiary); provided that any Dividend made pursuant to preceding clause (x) to any Wholly-Owned Subsidiary that is not a Credit Party may only be made if (A) (I) no Specified Default and no Event of Default then exists or would result therefrom and (II) such Wholly-Owned Subsidiary promptly distributes and/or transfer any Property received pursuant to such Dividend (directly or indirectly through other Wholly-Owned Subsidiaries) to a Credit Party or (ii) redeem, repurchase or defease any Senior Note; and
(dB) the Borrower will not, and will Subsidiary making such Dividend is not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments")a Credit Party; provided, provided however, that,
(e) , subject to Section 9.01(d)(v), any such Dividend may be made to the Bermuda Partnership notwithstanding the provisions existence of clause an Event of Default (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in other than an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as (A) no Event of Default shall have occurred and be continuing on the date such Restricted Payment is declared under Section 10.01 or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as a10
Appears in 1 contract
Restricted Payments, etc. (a) On and at all times after the date hereof:Effective Date, the Borrower
(ai) the Borrower will not declare, pay or make any dividend, dividend or distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock capital stock or other ownership interests (now or hereafter outstanding) of ("Equity") in the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock Equity (now or hereafter outstanding) of in the Borrower (other than dividends or distributions payable in shares of its common stock or warrants to purchase shares of its common stock or splits split-ups or reclassifications of its common stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem purchase or exchangeredeem, any shares of any class of Capital Stock Equity (now or hereafter outstanding) of in the Borrower, or warrants, options or other rights with respect to any shares of any class of Capital Stock Equity (now or hereafter outstanding) of in the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(eA) notwithstanding during the provisions of clause (a) aboveperiod that the Borrower is disregarded or is treated as a pass through entity for U.S. federal income tax purposes and after such period to the extent relating to liability for such period, the Borrower shall be permitted to may make Restricted Payments to Holdco cash distributions to the extent necessary to enable Holdco to (i) pay its overhead expenses Parent for the benefit of the Taxpayers, in respect of each Estimation Period, in an aggregate amount not to exceed $250,000 in the aggregate in any Fiscal YearPermitted Quarterly Tax Distribution; provided, (ii) pay its taxes and (iii) so long as that the amount of distributions made pursuant to this clause (A) no Default shall have occurred and will be continuing on excluded in the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date calculation of the payment amount of such Restricted Payment for which the relevant financial information has been delivered distributions pursuant to clause (aB) or clause (b) below. Within ten days following the Parent's filing of Section 7.1.1its required federal income tax return for the immediately preceding taxable year, and (C) an Authorized Officer of the Borrower Tax Amounts CPA shall have delivered file with the Agent a certificate to written statement indicating in reasonable detail the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with True-up Amount. In the covenants set forth in Section 7.2.4) certifying as case of a True-up Amount due to the accuracy Taxpayers, the Permitted Quarterly Tax Distribution payable in respect of clauses (e)(iii)(A) and (e)(iii)(B) abovesuch Estimation Period shall be increased by such True-up Amount. In the case of a True-up Amount due to the Company, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock the Permitted Quarterly Tax Distribution payable in respect of the Borrower held immediately following Estimation Period shall be reduced by directorssuch True-up Amount and the excess, officers or employees if any, of Holdco or the True-up Amount over such Permitted Quarterly Tax Distribution shall be applied to reduce the immediately following Permitted Quarterly Tax Distributions until such True-up Amount is entirely offset;
(B) if no Acquisition Loans are then outstanding, the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as amay:
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Key Components Finance Corp)
Restricted Payments, etc. On and at all times after None of the date hereofGroup Companies will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests or Equity Equivalents (exclusive of Debt Equivalents) of such Person), except that:
(ai) any direct or indirect Wholly Owned Subsidiary of the Borrower will not declare, pay may make Restricted Payments to the Borrower or to any Wholly Owned Subsidiary of the Borrower;
(ii) any direct or indirect non-Wholly Owned Subsidiary of the Borrower may make Restricted Payments to the Borrower or to any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Wholly Owned Subsidiary of the Borrower or ratably to all holders of its outstanding Equity Interests or to any Subsidiary of the Borrower included in any consolidated, affiliated, combined or unitary group filing a Tax return with the Borrower or any Subsidiary of the Borrower, but only to the extent and in an amount necessary for such Subsidiary or, ultimately, the Borrower, to discharge any Tax liability attributable to such non-Wholly Owned Subsidiary;
(iii) the Borrower may make cash Restricted Payments solely to purchase, redeem, retire, acquire, cancel, terminate or repurchase Equity Interests (or Equity Equivalents) in the Borrower or to make payments on any warrantsnotes issued to redeem such Equity Interests or Equity Equivalents from (I) present or former officers, options employees, directors, managers or other rights with respect to any shares consultants of any class Group Company (or their estates, spouses or former spouses, other immediate family members, estate planning vehicles, successors, executors, administrators, heirs, legatees or distributees of Capital Stock any of the foregoing) following the death, permanent disability, retirement or termination of employment of any such Person or otherwise, or (now II) so long as no Event of Default has occurred and is continuing or hereafter outstandingwould result therefrom, other holders of Equity Interests or Equity Equivalents in the Borrower; provided that in all such cases the aggregate amount of all cash paid in respect of all such Equity Interests (and Equity Equivalents) so redeemed or repurchased and all such payments on any such notes does not exceed $10,000,000 in the aggregate from and after the Closing Date;
(iv) any Group Company may make additional Restricted Payments in an aggregate amount during the term of this Agreement not exceeding the amount of Net Cash Proceeds received from any substantially contemporaneous Equity Issuance of the Borrower (other than dividends an Equity Issuance of Disqualified Capital Stock or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stockas an Equity Cure Contribution) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets Not Otherwise Applied immediately prior to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) time of the Borrower, making of such Restricted Payment so long as no Event of Default then exists or would be caused thereby;
(v) the Borrower may make cash Restricted Payments constituting de minimis cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other rights with respect to any shares of any class of Capital Stock (now securities convertible into or hereafter outstanding) exchangeable for Equity Interests of the BorrowerBorrower or in connection with any dividend, split or combination of Equity Interests or a Permitted Acquisition;
(bvi) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) Group Companies may make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make additional Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal YearAvailable Amount, provided that (iix) pay its taxes no Event of Default is continuing or would result therefrom and (iiiy) so long as (A) no Default shall have occurred and be continuing the Total Net Leverage Ratio for the most recently ended period of four consecutive fiscal quarters of the Borrower for which financial statements are available does not exceed 2.00 : 1.00 on the date such Restricted Payment is declared or a Pro Forma Basis after giving effect to be made, nor would a Default result from the making of such Restricted Payment, including on a Pro Forma Basis;
(Bvii) after giving effect to the making extent constituting Restricted Payments, the Group Companies may enter into and consummate transactions expressly permitted by Section 7.04, Section 7.05, Section 7.06 or Section 7.09;
(viii) the Group Companies may pay dividends or distributions within 30 days of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of declaration thereof, if at the date of declaration thereof such payment would have complied with the provisions of such this Agreement;
(ix) to the extent constituting Restricted Payment for which Payments, the relevant financial information has been delivered pursuant to clause (a) or clause (b) Group Companies may pay contingent liabilities in respect of Section 7.1.1any adjustment of purchase price, earn-outs, deferred compensation and (C) an Authorized Officer similar obligations of the Borrower shall have delivered a certificate to the Agents and its Subsidiaries incurred in form connection with Permitted Acquisitions, Permitted Intellectual Property Asset Acquisitions, Permitted Joint Ventures, Investments permitted by Section 7.06 and substance satisfactory to the Agents Asset Dispositions;
(including a calculation x) repurchases of the compliance with the covenants set forth Equity Interests in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any Subsidiary deemed to occur upon the exercise of its Subsidiaries, stock options or warrants may be made if such Equity Interests represent a portion of the exercise price of such options on any or warrants;
(xi) the Borrower may (a) accept Equity Interests in the Borrower to satisfy the withholding tax obligations of the holder of such shares Equity Interests upon settlement of such Equity Interests or related stock appreciation rights (b) effect a net settlement of Equity Interests in the Borrower upon the exercise of such Equity Interests to cover the exercise price or similar securities owned by tax withholding of such directors, officers or employees (or their estates of beneficiaries under their estates)Equity Interests, in all cases only upon death, disability, retirement, termination each case in an aggregate amount not to exceed $2,000,000 per year; and
(xii) the Group Companies may make Restricted Payments in respect of employment or pursuant the 2019 Notes and any Permitted Refinancing thereof to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aextent permitted by Section 7.08.
Appears in 1 contract
Restricted Payments, etc. On and at all times after None of the date hereofGroup Companies will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) of such Person), except that:
(ai) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower may make Restricted Payments to the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower;
(bii) any non-Wholly-Owned Subsidiary of the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to may make Restricted Payments to Holdco the Borrower or to any Wholly-Owned Subsidiary of the Borrower or ratably to all holders of its outstanding Equity Interests;
(iii) OH Holdings, Holdings and Intermediate Holdings may redeem or repurchase Equity Interests (or Equity Equivalents) or to make payments on notes issued in connection with the prior redemption or purchase of such Equity Interests and permitted pursuant to Section 7.01(xii) from (A) officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise or (B) other holders of Equity Interests or Equity Equivalents in OH Holdings, Holdings and Intermediate Holdings, so long as the purpose of such purchase is to acquire stock for reissuance to new officers, employees and directors (or their estates) of any Group Company, to the extent necessary to enable Holdco to (i) pay its overhead expenses so reissued within 12 months of any such purchase; provided that in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as all such cases (A) no Default shall have occurred and be continuing on the date such Restricted Payment or Event of Default is declared then in existence or to be made, nor would a Default result from the making of such Restricted Paymentotherwise arise therefrom, (B) after giving effect the aggregate amount of all cash distributed by the Borrower directly or indirectly to OH Holdings, Holdings and Intermediate Holdings in respect of all such shares so redeemed or repurchased (or otherwise spent by OH Holdings, Holdings and Intermediate Holdings) does not exceed $2,000,000 in any fiscal year of Holdings (with unused amounts of up to $1,000,000 being carried forward to succeeding fiscal years for a total of up to $3,000,000 in any fiscal year), and provided further that OH Holdings, Holdings and Intermediate Holdings may purchase, redeem or otherwise acquire Equity Interests and Equity Equivalents of OH Holdings, Holdings and Intermediate Holdings pursuant to this clause (iii) without regard to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants restrictions set forth in Section 7.2.4 the first proviso above for consideration consisting of the proceeds of key man life insurance obtained for the most recent full Fiscal Quarter immediately preceding purposes described in this clause (iii);
(iv) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, HGI may make cash Restricted Payments, directly or indirectly, to OH Holdings, Holdings and Intermediate Holdings, if OH Holdings, Holdings and Intermediate Holdings promptly use such proceeds for the date purposes described in clause (iii) above;
(v) HGI, Intermediate Holdings and Holdings may make cash Restricted Payments, directly or indirectly, to Intermediate Holdings, Holdings or OH Holdings, (as the case may be) for the purpose of paying, and in amounts not to exceed the amount necessary to pay, (A) the then currently due fees and expenses of OH Holdings’ counsel, accountants and other advisors and consultants, and other operating and administrative expenses of OH Holdings (including employee and compensation expenditures and other similar costs and expenses) incurred in the ordinary course of business that are for the benefit of, or are attributable to, or are related to, including the financing or refinancing of, OH Holdings’ Investment in the Borrower and its Subsidiaries, (B) the then currently due fees and expenses of OH Holdings’ independent directors and observers and (C) so long as no Default or Event of Default is then in existence or would arise therefrom, other fees and expenses permitted under Section 7.09;
(vi) HGI may pay directly or indirectly to Intermediate Holdings or the direct or indirect parent of Intermediate Holdings the amount that Intermediate Holdings or a direct or indirect parent of Intermediate Holdings is required to pay for federal, state, local income, franchise or similar taxes as the common parent of an affiliated group (within the meaning of Section 1504 of the Code) or a combined or unitary group of corporations of which HGI is a member and quarterly or annual payments for other taxes incurred by Intermediate Holdings or its direct or indirect parent (but only to the extent that such other taxes constitute franchise taxes or relate to the operations of, or such persons’ direct or indirect ownership of, HGI and its subsidiaries); provided that (A) such payments with respect to income, franchise or similar taxes may be made only in respect of the period during which HGI is consolidated, combined, or affiliated with OH Holdings, Holdings, or Intermediate Holdings for purposes of the payment of such taxes and (B) such payments with respect to income, franchise or similar taxes shall not exceed the aggregate amount that the Borrower reasonably estimates would be payable by HGI and its Subsidiaries if they filed a separate consolidated return with HGI as the parent, determined without giving effect to any deductions for amounts payable to Intermediate Holdings or the direct or indirect parent of Intermediate Holdings that have not been paid in cash.
(vii) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, HGI may make Restricted Payments to OH Holdings, directly or indirectly, provided that (A) all proceeds thereof are applied by OH Holdings solely for the purposes of Section 7.08(d); and (B) no such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) shall be made if an Authorized Officer interest payment in respect of the Borrower Junior Debentures could not, but for such Restricted Payment, be made in accordance with Section 7.08(d);
(viii) OH Holdings may make Restricted Payments made with Net Cash Proceeds of one or more Qualifying Equity Issuances within three Business Days following the receipt thereof; provided that, after giving effect to such Restricted Payment, no Change of Control shall have delivered occurred;
(ix) OH Holdings may make noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation portion of the compliance with the covenants set forth exercise price of such options;
(x) cash payments may be made by OH Holdings in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock lieu of the Borrower held by directors, officers issuance of fractional shares upon exercise or employees conversion of Holdco or the Borrower or any Equity Equivalents; and
(xi) payments in respect of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), Subordinated Debt may be made in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aaccordance with Section 7.08.
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower No Credit Agreement Party will, nor will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to applyto, declare or pay any dividends (other than dividends payable solely in non-redeemable common stock or comparable common equity interests of Holdings or any such Subsidiary, as the case may be) or return any equity capital to, its fundsstockholders, partners, members or other equity holders or authorize or make any other distribution, payment or delivery of property or assets cash to the purchaseits stockholders, redemptionpartners, exchange, sinking fund members or other retirement ofequity holders as such, or agree redeem, retire, purchase or permit any of its Subsidiaries to purchaseotherwise acquire, redeem directly or exchangeindirectly, for a consideration, any shares of any class of Capital Stock (its capital stock or other Equity Interests, now or hereafter outstanding) outstanding (or any warrants for or options or stock appreciation rights in respect of any of such shares or other Equity Interests), or set aside any funds for any of the Borrowerforegoing purposes, warrants, options and no Credit Agreement Party will permit any of its Subsidiaries to purchase or other rights with respect to otherwise acquire for a consideration any shares of any class of Capital Stock (the capital stock or other Equity Interests of any direct or indirect parent of such Subsidiary now or hereafter outstandingoutstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock or other Equity Interests) (all of the Borrower;
(bforegoing "Dividends") the Borrower will not pay or otherwise reimburse (in cash, property or obligations) make any obligation arising under or payments in respect of the Seller Note and will not apply any outstanding Shareholder Subordinated Notes or permit any of its Subsidiaries to apply any of its fundsIntercompany Debt, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;except that:
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make (x) any payment Subsidiary of the U.S. Borrower may pay Dividends to the U.S. Borrower or prepayment any Wholly-Owned Subsidiary of principal of, the U.S. Borrower and (y) any non-Wholly-Owned Subsidiary of the U.S. Borrower may pay cash Dividends to its shareholders generally so long as the U.S. Borrower or make any payment of interest on, any Senior Note on any day other than its respective Subsidiary which owns the stated, scheduled date for such payment or prepayment set forth Equity Interest in the documents Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interests in the Subsidiary paying such Dividends and instruments memorializing such Senior Notetaking into account the relative preferences, or which would violate if any, of the subordination provisions various classes of Equity Interests of such Senior Note, Subsidiary); provided that any Dividend made pursuant to preceding clause (x) to any Wholly-Owned Subsidiary that is not a Credit Party may only be made if (A) (I) no Specified Default and no Event of Default then exists or would result therefrom and (II) such Wholly-Owned Subsidiary promptly distributes and/or transfer any Property received pursuant to such Dividend (directly or indirectly through other Wholly-Owned Subsidiaries) to a Credit Party or (ii) redeem, repurchase or defease any Senior Note; and
(dB) the Borrower will not, and will Subsidiary making such Dividend is not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments")a Credit Party; provided, provided however, that,
(e) , subject to Section 9.01(d)(v), any such Dividend may be made to the Bermuda Partnership notwithstanding the provisions existence of clause an Event of Default (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses in other than an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and (iii) so long as (A) no Event of Default shall have occurred and be continuing on the date such Restricted Payment is declared under Section 10.01 or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as a10
Appears in 1 contract
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the The Borrower will not, and will not permit any of its Subsidiaries to, declare or pay any dividends (iother than dividends payable solely in non-redeemable common stock or comparable common equity interests of the Borrower or any such Subsidiary, as the case may be) make or return any payment equity capital to, its stockholders, partners, members or prepayment of principal of, other equity holders or authorize or make any other distribution, payment or delivery of interest onproperty or cash to its stockholders, partners, members or other equity holders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any Senior Note on shares of any day class of its capital stock or other than the statedEquity Interests, scheduled date now or hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of any of such payment shares or prepayment set forth in the documents and instruments memorializing such Senior Noteother Equity Interests), or which would violate set aside any funds for any of the subordination provisions of such Senior Noteforegoing purposes, or (ii) redeem, repurchase or defease any Senior Note; and
(d) and the Borrower will not, and will not permit any of its Subsidiaries to, make to purchase or otherwise acquire for a consideration any deposit for shares of any class of the capital stock or other Equity Interests of any direct or indirect parent of such Subsidiary now or hereafter outstanding (or any options or warrants or stock appreciation rights issued by such Person with respect to its capital stock or other Equity Interests) (all of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b“Dividends”) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, except that,:
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) (x) any Subsidiary of the Borrower may pay Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower and (y) any non-Wholly-Owned Subsidiary of the Borrower may pay cash Dividends to its overhead expenses in an amount not to exceed $250,000 shareholders generally so long as the Borrower or its Subsidiary which owns the Equity Interest in the aggregate Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon its relative holding of the Equity Interests in the Subsidiary paying such Dividends and taking into account the relative preferences, if any, of the various classes of Equity Interests of such Subsidiary); provided that any Fiscal Year, Dividend made pursuant to the preceding clause (x) by any Credit Party to any Wholly-Owned Subsidiary that is not a Credit Party may only be made if (A) (I) no Specified Default and no Event of Default then exists or would result therefrom and (II) such Wholly-Owned Subsidiary promptly distributes and/or transfer any Property received pursuant to such Dividend (directly or indirectly through other Wholly-Owned Subsidiaries) to a Credit Party or (B) the Subsidiary making such Dividend is not a Credit Party;
(ii) pay its taxes and (iii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) may redeem or clause (b) of Section 7.1.1, and (C) an Authorized Officer purchase shares of the Borrower shall have delivered a certificate Common Stock or options to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of purchase the Borrower Common Stock, held by directors, former officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon Subsidiaries following the death, disability, retirement, retirement or termination of employment of such officers or employees, provided that (x) the only consideration paid by the Borrower in respect of such redemptions and/or purchases shall be cash, (y) the aggregate amount paid by the Borrower in cash in respect of all such redemptions and/or purchases shall not exceed $10,000,000 in any Fiscal Year of the Borrower, and (z) at the time of any redemption or purchase pursuant to this Section 10.06(ii), no Specified Default or Event of Default shall then exist or result therefrom;
(iii) the Borrower may pay regularly scheduled Dividends on Qualified Preferred Stock issued by it pursuant to the terms thereof solely through the issuance of additional shares of such stock option plan Qualified Preferred Stock rather than in cash;
(iv) the Borrower may make repurchases of Equity Interests of the Borrower or any other agreement Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants to the extent such Equity Interests represent a portion of the exercise price of such options or warrants;
(v) the Borrower may make repurchases of Equity Interests of the Borrower in lieu of the issuance of fractional shares upon the exercise of options or warrants to purchase Borrower Common Stock;
(vi) the Borrower may make distributions of rights to holders of Borrower Common Stock pursuant to a customary shareholder rights plan and the redemption of such rights for nominal consideration;
(vii) the Borrower may make additional Dividends not otherwise permitted under which this Section 10.06 in an aggregate after the Amendment No. 4 Effective Date not to exceed $25,000,000; and
(viii) so long as the Payment Conditions are satisfied both before and after giving effect to the payment of such shares of Capital StockDividends, options, related rights or similar securities were issued (collectively referred to as athe Borrower and its Subsidiaries may pay additional Dividends not otherwise permitted under this Section 10.06.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Restricted Payments, etc. On and at all times after the date hereof:
(a) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Each Borrower will not, and will not permit any of its Subsidiaries to, make any Restricted Payment, or make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause Restricted Payment, other than:
(a)) Restricted Payments (i) for customary director indemnification payments to the directors (or equivalent persons) of such Person, (ii) for reasonable and customary fees to outside directors (or equivalent persons) of such Person and for customary director (or equivalent persons) and officers insurance premiums owed by such Person, (iii) for financial, other reporting and similar customary administrative or overhead costs and expenses of such Person, (iv) for obligations incurred in the Ordinary Course of Business to the extent relating to activities permitted under this Agreement and (v) for Tax Distributions;
(b) payments by any Subsidiary of any Borrower to its direct parent (other than GPM) so long as such parent is (i) a direct or indirect wholly-owned Subsidiary of any Borrower, (ii) GPM or (iii) a direct parent (other than GPM or a direct or indirect parent of GPM) of a non-wholly-owned Subsidiary, in which case such payment shall be made pro rata to such parent based on its relative ownership interests in the class of equity receiving such Restricted Payment;
(c) above Restricted Payments by any Borrower or any of its Subsidiaries to pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Equity Interests);
(d) Restricted Payments to repurchase, redeem or otherwise acquire or retire for value any Equity Interests of the Borrowers or their Subsidiaries held by any current or former employee, director, consultant or officer (or their transferees, spouses, ex-spouses, estates or beneficiaries under their estates) of any Borrower or Subsidiary of any Borrower pursuant to any employee equity subscription agreement, stock option agreement or stock ownership arrangement, including upon the death, disability, retirement, severance or termination of employment or service of such Persons to the extent (i) not exceeding $1,000,000 in the aggregate during any fiscal year (plus (x) any amounts funded with issuances of Equity Interests of the Borrowers (or any direct or indirect parent entity thereof) or proceeds in respect thereof used to repurchase such Equity Interests and (y) amounts solely in the form of forgiveness of Indebtedness of such Persons owing to the Borrowers on account of redemptions or repurchases of the Equity Interests of the Borrowers held by such Persons) and (ii) both before and after giving effect to any such payment, no Specified Event of Default or Financial Covenant or Financial Reporting Event of Default exists or would immediately thereafter occur as a result thereof; provided that to the extent any amounts remain unused under subclause (i) of this clause (d) are herein collectively referred in a given fiscal year of the Borrowers may be carried forward and made in the immediately succeeding fiscal year of the Borrowers without regard to as "Restricted Payments"); provided, however, that,any caps set forth herein;
(e) notwithstanding the provisions of clause (ai) above, the Borrower shall be permitted to make Restricted Payments in connection with the Profits Interest Agreement and (ii) Restricted Payments in an aggregate amount of up to Holdco $1,000,000 per fiscal year to pay advisory fees pursuant to the Xxxx Advisory Agreement plus any amounts accrued and not paid for periods prior to the Closing Date;
(f) payments of Indebtedness of the type described in Section 7.8(l) hereof to the extent necessary to enable Holdco to made in conformity with the terms of Section 7.8(l);
(ig) pay its overhead expenses Restricted Payments made using either, or a combination of, the proceeds of the Class F Equity Issuance or the Initial Term Loan Facility (as such term is defined in the Ares Term Loan Agreement) in an aggregate principal amount not to exceed $250,000 20,000,000;
(h) Restricted Payments (x) in connection with the redemption of the Class F units of GPM pursuant to the GPMI Operating Agreement in an aggregate in principal amount not to exceed $20,000,000 plus any Fiscal Year, (ii) pay its taxes and (iii) amounts accreted after the Closing Date so long as prior to and after giving effect to any such redemption, Borrowers have Undrawn Availability and Average Undrawn Availability of not less than twenty percent (20%) of the Maximum Revolving Advance Amount and (y) in connection with the redemption of the Senior Preferred Member Units and/or the Class E Member Units (in each case, pursuant to and as defined in the GPMI Operating Agreement) in an aggregate principal amount not to exceed $62,000,000 plus any amounts accreted after the Closing Date; provided, that (A) the Total Leverage Ratio on a Pro Forma Basis after giving effect to all such Restricted Payments under such subclause (y), shall not exceed an amount equal to 1.50x less than the Closing Date Leverage Ratio and (B) prior to and after giving effect to any such redemption, Borrowers have Undrawn Availability and Average Undrawn Availability of not less than twenty percent (20%) of the Maximum Revolving Advance Amount;
(i) to the extent constituting Restricted Payments, payments of Indebtedness permitted pursuant to Section 7.17 hereof;
(j) other Restricted Payments in an aggregate principal amount not to exceed $1,000,000 in the aggregate; provided that no Event of Default shall have occurred and be continuing on or would immediately result therefrom; provided further that any unused portion of this clause (j) may be reallocated to Investments in Section 7.4(v) hereof; and
(k) Restricted Payments utilizing the date such Restricted Payment is declared Available Amounts Basket; provided that (i) no Event of Default shall have occurred and be continuing or to be madewould result therefrom, nor would a Default result from and (ii) solely for purposes of utilizing availability under clause (a)(i) of the making of such Restricted PaymentAvailable Amounts Basket, (B) after giving effect to the making of any such Restricted Payment on a Pro Forma Basis, the Borrower Total Leverage Ratio shall be in pro forma compliance with not exceed an amount equal to 1.00x less than the covenants set forth in Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as aClosing Date Leverage Ratio.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (ARKO Corp.)
Restricted Payments, etc. On and at all times after None of the date hereofGroup Companies will declare or pay any Restricted Payments (other than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) of such Person), except that:
(ai) the Borrower will not declare, pay or make any dividend, distribution or exchange (in cash, property or obligations) on or in respect of any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower may make Restricted Payments to the Borrower or on any warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase, redeem or exchange, any shares of any class of Capital Stock (now or hereafter outstanding) of the Borrower, warrants, options or other rights with respect to any shares of any class of Capital Stock (now or hereafter outstanding) Wholly-Owned Subsidiary of the Borrower;
(bii) any non-Wholly-Owned Subsidiary of the Borrower will not pay or otherwise reimburse (in cash, property or obligations) any obligation arising under or in respect of the Seller Note and will not apply or permit any of its Subsidiaries to apply any of its funds, property or assets to the purchase, redemption, exchange, sinking fund or other retirement of the Seller Note;
(c) the Borrower will not, and will not permit any of its Subsidiaries to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Note on any day other than the stated, scheduled date for such payment or prepayment set forth in the documents and instruments memorializing such Senior Note, or which would violate the subordination provisions of such Senior Note, or (ii) redeem, repurchase or defease any Senior Note; and
(d) the Borrower will not, and will not permit any of its Subsidiaries to, make any deposit for any of the foregoing purposes (the foregoing prohibited acts referred to in clause (a), (b) or (c) above or in this clause (d) are herein collectively referred to as "Restricted Payments"); provided, however, that,
(e) notwithstanding the provisions of clause (a) above, the Borrower shall be permitted to may make Restricted Payments to Holdco the Borrower or to any Wholly-Owned Subsidiary of the extent necessary Borrower or ratably to enable Holdco to (i) pay all holders of its overhead expenses in an amount not to exceed $250,000 in the aggregate in any Fiscal Year, (ii) pay its taxes and outstanding Equity Interests;
(iii) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the Borrower may make cash Restricted Payments to Holdings and Holdings may in turn make cash Restricted Payments to Parent Holdings to enable Parent Holdings to redeem or repurchase Equity Interests (or Equity Equivalents) from (A) officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise, or (B) other holders of Equity Interests or Equity Equivalents in Parent Holdings; provided that in all such cases (1) no Default shall have occurred or Event of Default is then in existence or would otherwise arise therefrom, (2) the aggregate amount of all cash paid in respect of all such shares so redeemed or repurchased does not exceed $15,000,000 in the aggregate from and be continuing on after the date such Restricted Payment is declared Closing Date, and provided further that Parent Holdings may purchase, redeem or otherwise acquire Equity Interests and Equity Equivalents of Parent Holdings pursuant to this clause (iii) without regard to the restrictions set forth in the first proviso above for consideration consisting of (x) the proceeds of key man life insurance, (y) the Net Cash Proceeds of Qualifying Equity Issuances not otherwise utilized for any purpose specified in clause (ii) of the definition of “Qualifying Equity Issuance” and (z) that portion of Excess Cash Flow for the fiscal years ended after the Closing Date, if any, not required to be madeused to prepay the Loans or Cash Collateralize L/C Obligations in accordance with Section 2.09 or utilized to make Investments under Section 7.06(a)(xvi) or Consolidated Capital Expenditures under Section 7.14(c);
(iv) the Borrower may make cash Restricted Payments to Holdings, nor would a Default result from and Holdings may in turn make cash Restricted Payments to Parent Holdings, to enable Holdings or Parent Holdings to pay, and in amounts not to exceed the making amount necessary to pay, (A) the then currently due fees and expenses of such Restricted PaymentHoldings’ and Parent Holdings’ counsel, accountants and other advisors and consultants, and other operating and administrative expenses of Holdings and Parent Holdings (including employee and compensation expenditures, directors’ and officers’ insurance premiums and other similar costs and expenses) incurred in the ordinary course of business that are for the benefit of, or are attributable to, or are related to, including the financing or refinancing of, Parent Holding’s Investment in the Borrower and its Subsidiaries, up to an aggregate amount of $500,000 for each fiscal year, (B) after giving effect the then currently due fees and expenses of Holdings’ and Parent Holdings’ independent directors and (C) the then currently due taxes payable by Holdings and Parent Holdings solely on account of the income of Holdings and Parent Holdings related to their respective Investment in the Borrower and its Subsidiaries and the reasonable expenses of preparing returns reflecting such taxes; provided that Holdings and Parent Holdings agree to contribute to the making of Borrower any refund Holdings or Parent Holdings receives relating to any such Restricted Payment taxes; and
(v) the Borrower shall may make cash Restricted Payments to Holdings, and Holdings may in turn make cash Restricted Payments to Parent Holdings, to enable Holdings or Parent Holdings to pay, and in amounts not to exceed the amount necessary to pay the amount that the Borrower would have been required to pay for federal, state, local or other taxes on income if it were deemed to be the common parent of an affiliated group (within the meaning of Section 1504 of the Code) of which only it and its Subsidiaries were members (and assuming for such purpose that such group had the benefit of any losses of the Borrower and its Subsidiaries previously used by Holdings or Parent Holdings); provided that such payments may be made only in pro forma compliance respect of the period during which the Borrower is consolidated with the covenants set forth in Section 7.2.4 Holdings and Parent Holdings for the most recent full Fiscal Quarter immediately preceding the date purposes of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause taxes (a) or clause (b) of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to the accuracy of clauses (e)(iii)(A) and (e)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdco or Preferred Stock of the Borrower held by directors, officers or employees of Holdco or the Borrower or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively payments being herein referred to as a(“Permitted Tax Distributions”).
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