Restricted Payments, etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except: (a) Restricted Payments made by Subsidiaries to the Borrower or wholly owned Subsidiaries; (b) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, Restricted Payments made by the Borrower or its Subsidiaries to Intermediate Holdco for the Borrower’s share of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent); and (c) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, the Borrower may make Restricted Payments (including to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries as established in good faith by the Borrower’s board of directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall not exceed $2,000,000 in any Fiscal Year.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Energy Xxi (Bermuda) LTD), First Lien Credit Agreement (Energy XXI Texas, LP)
Restricted Payments, etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, exceptother than:
(a) Restricted Payments made dividends or distributions by Subsidiaries to the Borrower or wholly owned Subsidiariespayable in common stock of the Borrower;
(b) Restricted Payments made by Restricted Subsidiaries to the Borrower, any Guarantor or any wholly owned Restricted Subsidiary;
(c) Restricted Payments consisting of the cashing-out of employee stock options in the Borrower’s or any Restricted Subsidiary’s Capital Stock so long as the aggregate amount of all such Restricted Payments during the term of this Agreement does not exceed $3,500,000;
(d) the conversion of HIGH TIDES or Existing Subordinated Debt into common Capital Stock of the Borrower;
(e) the payments and issuance and distribution of common Capital Stock made in connection with the SureBeam Spin-Off;
(f) the Borrower and its Restricted Subsidiaries may take such actions as are permitted under Sections 8.5 and 8.7;
(g) the payment of accrued and unpaid distributions by Titan Capital Trust on the HIGH TIDES so long as no Default or Borrowing Base Deficiency has shall have occurred and is continuing, be continuing or shall be caused thereby, Restricted Payments made by the Borrower or its Subsidiaries to Intermediate Holdco for the Borrower’s share of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent)would result therefrom; and
(ch) the payment of dividends on the preferred stock of the Borrower payable on a quarterly basis not to exceed $180,000 per quarter so long as no Default or Borrowing Base Deficiency has shall have occurred and is continuing, be continuing or shall be caused thereby, the Borrower may make Restricted Payments (including to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries as established in good faith by the Borrower’s board of directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall not exceed $2,000,000 in any Fiscal Yearwould result therefrom.
Appears in 2 contracts
Samples: Senior Secured Credit Agreement (Titan Corp), Senior Secured Credit Agreement (Titan Corp)
Restricted Payments, etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, exceptother than:
(a) Restricted Payments made by Subsidiaries to the Borrower or wholly wholly-owned Subsidiaries;
(b) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, Restricted Payments made by the Borrower or its Subsidiaries to Intermediate Holdco for Parent (i) pursuant to the Borrower’s share Tax Sharing Agreement; provided that the amount of such Restricted Payment shall not exceed the amount of income taxes calculated as if that the Borrower were filing would have been liable for on a stand alone basis or a consolidated income tax return with its Subsidiaries (reduced by any Taxes directly paid by the Borrower or any of its Subsidiaries) and (ii) to pay franchise taxes independently and other overhead expenses of Intermediate Holdco (provided that prior Parent in an amount not to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation exceed an aggregate of such attributable taxes $1,000,000 in detail and form reasonably acceptable to the Administrative Agent); andany Fiscal Year;
(c) repurchases of Capital Securities from former employees, directors and officers of Parent and its Subsidiaries in an amount not to exceed $1,000,000 in any Fiscal Year in the aggregate; provided further that, to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause (c) exceeds the aggregate amount of repurchases actually made by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by such proviso in such succeeding Fiscal Year, without giving effect to such carry-forward;
(d) non-cash repurchases of Capital Securities deemed to occur upon exercise of stock options to the extent such Capital Securities represents a portion of the exercise price of such options;
(e) Restricted Payments made by the Borrower to Parent in the form of a distribution of the property identified on Item 7.2.6(e) of the Disclosure Schedule;
(f) Restricted Payments made by the Borrower to Parent after the Closing Date on or no earlier than three Business Days prior to any interest payment date with respect to the Existing Parent Notes in an amount not to exceed the interest due on the then outstanding Existing Parent Notes on such interest payment date, so long as Parent uses such Restricted Payments to pay such interest on such interest payment date; provided that (A) the interest expense on (and principal amount of) the Existing Parent Notes have not increased since the Closing Date and (B) and the interest payment dates relating thereto have not changed since the Closing Date;
(g) so long as no Default or Borrowing Base Deficiency has occurred and is continuingcontinuing or would result therefrom, or shall be caused thereby, the Borrower may make Restricted Payments (including made by Borrower to Intermediate Holdco Parent after the Closing Date, so long as such Restricted Payments are used to simultaneously fund redemptions, repayments, prepayments, repurchases or acquisitions for value of Existing Parent Notes; provided that Intermediate Holdco may make payments, including the aggregate amount of all Restricted Payments, to Parent) Payments made pursuant to this clause (g) may not exceed $12,000,000;
(h) so long as no Default has occurred and in accordance is continuing or would result therefrom, Restricted Payments to the extent necessary to effect a refinancing of Existing Parent Notes with stock option plans Indebtedness incurred pursuant to clause (b) or other benefit plans for management clause (m) of Section 7.2.2; provided that the maturity and Average Life of such Indebtedness may not be earlier or employees shorter than that of the First Lien Notes issued on the Closing Date and the terms thereof must be, taken as a whole, no less favorable to the Borrower and its Subsidiaries than those of the First Lien Notes issued on the Closing Date; and
(i) so long as established in good faith by the Borrower’s board of directors no Default has occurred and to otherwise pay for G&A Expenses and is continuing or would result therefrom, other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall in an aggregate amount for all Restricted Payments pursuant to this clause (g) not to exceed $2,000,000 in any Fiscal Year5,000,000.
Appears in 1 contract
Restricted Payments, etc. The Holdings and the Borrower will not, and will not permit any of its their respective Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except:
(a) the Borrower may make Restricted Payments made to Holdings for the purpose of paying, so long as all proceeds are promptly used by Subsidiaries Holdings to pay, (i) reasonable fees for audit, legal and similar administrative services and other corporate overhead, (ii) customary fees to non-officer directors of Holdings who are not Affiliates of Holdings, (iii) out-of-pocket expenses to directors or observers of the Borrower or wholly owned Subsidiariesboard of directors of Holdings and (iv) taxes payable by Holdings;
(b) so long as at the time of such purchase (and after giving effect thereto) there shall exist no Default or Borrowing Base Deficiency has occurred Default, Holdings may (and is continuing, or shall be caused thereby, the Borrower may make Restricted Payments made by to Holdings to permit Holdings to) repurchase Management Shares from any Management Investor or repay (or make interest payments on) Indebtedness incurred
(i) with proceeds of the key-man life insurance maintained on the life of such Management Investor and (ii) with cash in an aggregate amount not exceeding $2,500,000 per year up to a maximum aggregate amount equal to $10,000,000 over the term of this Agreement; provided that to the extent the amount of cash used to make such repurchases (or repayments and payments of such Indebtedness) in any Fiscal Year is less than $2,500,000, 100% of such unused amount may be carried forward to succeeding Fiscal Years and utilized to make such repurchases (or repayments and payments of such Indebtedness) in such succeeding Fiscal Years (up to such maximum amount);
(i) any Subsidiary of the Borrower may make Restricted Payments to the Borrower or any wholly-owned Subsidiary of the Borrower which is the parent of such Subsidiary and (ii) any non-wholly-owned Subsidiary of the Borrower may make Restricted Payments to its shareholders generally so long as the Borrower or its Subsidiaries to Intermediate Holdco for Subsidiary which owns the Borrower’s equity interest in the Subsidiary making such Restricted Payment receives at least its proportionate share thereof (based upon its relative holding of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided that prior to equity interests in the Subsidiary making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent); and;
(cd) so long as no Default then exists or Borrowing Base Deficiency has occurred and is continuing, or shall be caused therebywould result therefrom, the Borrower may make Restricted Payments (including to Intermediate Holdco so Holdings at the times, and in the amounts, necessary to enable Holdings to make any regularly scheduled interest or principal payments that Intermediate Holdco may make payments, including Restricted Payments, are due and payable on any Permitted Seller Notes or in respect of any Qualifying Subordinated Debt to Parent) the extent that such payments are permitted to be made pursuant to and in accordance with Section 7.2.8;
(e) repurchases of Capital Stock of Holdings deemed to occur upon the exercise of stock option plans or other benefit plans for management or employees options if such Capital Stock represents a portion of the Borrower exercise price thereof and so long as no cash is paid or distributed by Holdings or any of its Subsidiaries as established in good faith by connection therewith; and
(f) the Borrower’s board of directors Tender Offer and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments the Merger shall not exceed $2,000,000 in any Fiscal Yearbe permitted.
Appears in 1 contract
Restricted Payments, etc. The Borrower will not, and will not permit any of its Subsidiaries (other than a Receivables Subsidiary) to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except:
other than (a) Restricted Payments made by Subsidiaries to the Borrower or wholly owned Subsidiaries;
, (b) cashless exercises of stock options, (c) cash payments by Borrower in lieu of the issuance of fractional shares upon exercise or conversion of Equity Equivalents, (d) Restricted Payments in connection with the share repurchases required by the employee stock ownership programs or required under employee agreements, (e) so long as no Specified Default or Borrowing Base Deficiency has occurred and is continuingcontinuing or would result therefrom, or shall be caused therebyand both before and after giving effect to such Restricted Payment as if such Restricted Payment had been made on the last day of the Measurement Period, the Borrower is in compliance with Section 7.2.4 for such Measurement Period, Restricted Payments made not otherwise permitted by this Section 7.2.6 in an aggregate amount, together with the Borrower aggregate amount of Indebtedness under any Pro Forma Unsecured Indebtedness Documents, the 2014 Senior Note Documents, the 2016 Senior Note Documents or its Subsidiaries the 2020 Senior Note Documents paid or prepaid in any Fiscal Year pursuant to Intermediate Holdco for clause (1)(B) of the Borrower’s share of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco proviso to Section 7.2.8(a), not to exceed $150,000,000 in any Fiscal Year plus Available Retained Excess Cash Flow and (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent); and
(cf) so long as no Specified Default or Borrowing Base Deficiency has occurred and is continuingcontinuing or would result therefrom, or shall be caused therebyRestricted Payments not otherwise permitted by this Section 7.2.6 to the extent that, both before and after giving effect to such Restricted Payment as if such Restricted Payment had been made on the last day of the Measurement Period, the Borrower may make Restricted Payments (including to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to and in accordance with stock option plans or other benefit plans Leverage Ratio for management or employees of the Borrower and its Subsidiaries as established in good faith by the Borrower’s board of directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall Measurement Period would not exceed $2,000,000 in any Fiscal Year3.00:1.00.
Appears in 1 contract
Samples: Credit Agreement (Hanesbrands Inc.)
Restricted Payments, etc. The Holdings and each Borrower will not, and will not permit any of its their respective Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except:other than
(a) Restricted Payments made by Subsidiaries to the Borrower Borrowers or wholly owned SubsidiariesSubsidiaries of either Borrower;
(b) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, Restricted Payments made by the Borrowers and the Subsidiaries, as applicable, to Holdings in accordance with the Tax Sharing Agreement, but in aggregate amounts no greater than, and limited to the amount necessary to enable Holdings to make payments in cash in respect of the aggregate federal income tax liability then due of the "affiliated group" (within the meaning of Section 1504(a)(1) of the Code) of which Holdings is the common parent corporation; PROVIDED, HOWEVER, that any payment required to be made by any Borrower or its Subsidiaries Subsidiary to Intermediate Holdco for Holdings in accordance with the Borrower’s share of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided Tax Sharing Agreement that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable otherwise would be prohibited pursuant to the Administrative Agent); andpreceding limitation may be paid directly to another Borrower or Subsidiary, as applicable, to the extent that Holdings would have been required to make a payment to such other Borrower or Subsidiary in accordance with the Tax Sharing Agreement.
(c) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, the Borrower may make Restricted Payments (including to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries as established in good faith made by the Borrower’s board Borrowers to Holdings solely to the extent necessary to enable Holdings to pay Management Fees in an aggregate amount of directors and up to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall not exceed $2,000,000 1,000,000 in any Fiscal Year.Year thereafter;
(d) Restricted Payments made by the Borrowers to Holdings solely to the extent necessary to enable Holdings to pay for general administrative and operating expenses of Holdings;
(e) Restricted Payments made by the Borrowers to Holdings solely to the extent necessary to enable Holdings to repurchase, redeem or otherwise acquire or retire for value any Capital Securities of Holdings, or any warrant, option or other right to acquire Capital Securities of Holdings, held by any member of management or employee of Holdings or any of its Subsidiaries pursuant to any management equity subscription agreement or stock option agreement as a result of the cessation of the employment such Person (by death, disability or otherwise) in an aggregate amount of up to $1,000,000 in the 1999 Fiscal Year and $5,000,000 in each Fiscal Year thereafter;
Appears in 1 contract
Samples: Credit Agreement (World Almanac Education Group Inc)
Restricted Payments, etc. The Borrower Parent will not, and will not permit any of its Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except:other than
(a) Restricted Payments made by wholly-owned Subsidiaries to the Borrower Parent or wholly other wholly-owned SubsidiariesSubsidiaries (provided that (x) with respect to any Restricted Payment referenced in clause (i) of the definition thereof, if any Default has occurred and is continuing or would result therefrom and (y) with respect to any Restricted Payment referenced in clause (ii) of the definition thereof such Restricted Payment shall be made in cash and if any Default has occurred and is continuing or would result therefrom and the Required Lenders have notified the Parent that the payments made under the Greens Creek Demand Note must be included in the limitation described below, the aggregate amount of Restricted Payments permitted to be made under this clause (a) shall not exceed $6,000,000 per each Fiscal Quarter or $20,000,000 per each Fiscal Year (excluding, for purposes of these dollar limits, payments (which are consistent with past practices) made under the Greens Creek Demand Note until such time that the Required Lenders notify the Parent that such payments must be included in such limitation) and, in addition, any Restricted Payment referenced in clause (i) of the definition thereof shall also not exceed the amount necessary for the purpose of paying, so long as all such payments are promptly used by the Parent to pay, payroll, operating, and administrative expenses incurred in the ordinary course of business, franchise or similar taxes and other similar taxes, fees and expenses required to maintain the Parents corporate existence);
(b) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, Restricted Payments made by non-wholly-owned Subsidiaries that are not Obligors to its shareholders or members generally so long as the Borrower Parent or its Subsidiaries to Intermediate Holdco for Subsidiary which owns the Borrower’s equity interest in the Subsidiary making such Restricted Payment receives at least its proportionate share thereof (based upon its relative holding of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided that prior to equity interests in the Subsidiary making such Restricted Payment);
(c) the declaration or payment by the Parent of a cash dividend on, Borrower or on account of, any class of Capital Securities of the Parent (including Designated Preferred Stock) in an aggregate amount not to exceed the Funds Available for Restricted Payments; provided that immediately prior to such declaration or payment, an Authorized Officer of the Parent shall provide have certified in writing to the Administrative Agent with a calculation that no Default shall have occurred and be continuing or would result therefrom;
(d) the payment of any dividends the declaration of which was permitted pursuant to the immediately preceding clause (b), so long as such payment is made within 60 days of such attributable taxes declaration or on its regularly schedule payment date;
(e) the redemption, purchase or other acquisition by the Parent of its Series B Preferred Stock and, concurrent with any such redemption, the payment of accrued dividends thereon in detail and form reasonably acceptable an aggregate amount not to exceed the Funds Available for Restricted Payments; provided that immediately prior to such redemption, purchase or other acquisition or payment of accrued dividends, an Authorized Officer of the Parent shall have certified in writing to the Administrative Agent)Agent that no Default shall have occurred and be continuing or would result therefrom;
(f) the redemption, purchase or other acquisition of Capital Securities of the Parent in exchange for, or with the net cash proceeds of, the substantially concurrent sale (other than to a Subsidiary of the Parent) of Capital Securities (other than Redeemable Capital Securities and Designated Preferred Stock) of the Parent; provided that immediately prior to such redemption, purchase or other acquisition, an Authorized Officer of the Parent shall have certified in writing to the Administrative Agent that immediately before and after giving effect to such redemption, purchase or other acquisition no Default shall have occurred and be continuing or would result therefrom;
(g) the redemption, purchase or other acquisition of Capital Securities pursuant to the Small Lot Repurchase Program in an aggregate amount not to exceed the Funds Available for Restricted Payments; provided that immediately prior to such redemption, purchase or other acquisition, an Authorized Officer of the Parent shall have certified in writing to the Administrative Agent that immediately before and after giving effect to such redemption, purchase or other acquisition no Default shall have occurred and be continuing or would result therefrom; and
(h) the declaration and payment by the Parent of cash dividends on, or on account of, the Parent’s Series B Preferred Stock, 6.5% Mandatory Convertible Preferred Stock and 12% Convertible Preferred Stock, provided, that, (a) payment of such dividend occurs on or prior to January 31, 2010, (b) such payment is only for accrued and unpaid dividends to such date of payment, and (c) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, the Borrower may make Restricted Payments (including to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to and in accordance with stock option plans or other benefit plans for management or employees Parent only pays such portion of the Borrower and its Subsidiaries as established dividend in good faith by the Borrower’s board of directors and to cash that is not otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall not exceed $2,000,000 in any Fiscal Yearpayable with common stock.
Appears in 1 contract
Restricted Payments, etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except:
(a) Restricted Payments made by Subsidiaries to the Borrower or wholly owned Subsidiaries;
(b) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, Restricted Payments made by the Borrower or its Subsidiaries to Intermediate Holdco for the Borrower’s share of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent); and;
(c) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, the Borrower may make Restricted Payments (including to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, ultimately to Parent) pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries as established in good faith by the Borrower’s board of directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall not exceed $2,000,000 in any Fiscal Year;
(d) Restricted Payments, (x) to Parent or Subsidiaries of Parent (so that such amounts can ultimately be paid to Parent) in an amount not to exceed $25,000,000 in the aggregate (on a cumulative basis for all payments pursuant to this clause (x), including those in the aggregate total amount of $11,082,156 made prior to the Closing Date) so that Parent may use such amounts for the purpose of paying premiums or other payments associated with inducing the early conversion of the Parent’s convertible preferred stock and (y) to Parent or Subsidiaries of Parent (so that such amounts can ultimately be paid to Parent) in an aggregate amount not to exceed $17,000,000 in any calendar year (on a cumulative basis for all payments pursuant to this clause (y)) so that Parent may pay dividends on its outstanding preferred stock; provided, however, that such Restricted Payments under this Section 7.2.6(d) may be made only so long as (i) no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, (ii) the Borrowing Base Utilization Percentage after such proposed Restricted Payment would not exceed 50%, (iii) the Borrower’s unused availability under the Borrowing Base after such proposed Restricted Payment is at least $150,000,000, and (iv) prior to the making of any such Restricted Payment, the Borrower delivers a certificate to the Administrative Agent certifying as to the satisfaction of the conditions set forth in the immediately foregoing clauses (i)-(iii) and certifying (A) in regards to a proposed Restricted Payment under clause (x) of this Section 7.2.6(d), the aggregate amount of all such Restricted Payments (including the amount of the Restricted Payment proposed to be made) pursuant to such clause (x) and (B) in regards to a proposed Restricted Payment under clause (y) of this Section 7.2.6.(d), the aggregate amount of all such Restricted Payments made from January 1 of such year up to and including the date of such Restricted Payment; and
(e) Restricted Payments made by the Borrower and/or its Subsidiaries to an Affiliate for the payment of premiums for insurance and other costs related to the formation and operation of such Affiliate; provided that such Restricted Payments shall not exceed the amount that Borrower would pay as a premium in an arms-length transaction with a Person that is not an Affiliate and otherwise in accordance with Section 7.1.4.
Appears in 1 contract
Samples: First Lien Credit Agreement (Energy Xxi (Bermuda) LTD)
Restricted Payments, etc. The Parent Borrower will not, and will not permit any of its Subsidiaries (other than a Receivables Subsidiary) to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except:
other than (a) Restricted Payments made by Subsidiaries to the Parent Borrower or wholly owned Subsidiaries;
, (b) cashless exercises of stock options, (c) cash payments by Parent Borrower in lieu of the issuance of fractional shares upon exercise or conversion of Equity Equivalents, (d) Restricted Payments in connection with the share repurchases required by the employee stock ownership programs or required under employee agreements, (e) so long as no Specified Default or Borrowing Base Deficiency has occurred and is continuingcontinuing or would result therefrom, or shall be caused therebyand both before and after giving effect to such Restricted Payment as if such Restricted Payment had been made on the last day of the Measurement Period, the Parent Borrower is in compliance with Section 7.2.4 for such Measurement Period, Restricted Payments made not otherwise permitted by this Section 7.2.6 in an aggregate amount not to exceed the Borrower or its Subsidiaries to Intermediate Holdco for the Borrower’s share of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco Available Amount and (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent); and
(cf) so long as no Specified Default or Borrowing Base Deficiency has occurred and is continuingcontinuing or would result therefrom, or shall be caused therebyRestricted Payments not otherwise permitted by this Section 7.2.6 to the extent that, both before and after giving effect to such Restricted Payment as if such Restricted Payment had been made on the last day of the Measurement Period, the Borrower may make Restricted Payments (including to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to and in accordance with stock option plans or other benefit plans Leverage Ratio for management or employees of the Borrower and its Subsidiaries as established in good faith by the Borrower’s board of directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall Measurement Period would not exceed $2,000,000 in any Fiscal Year3.25:1.00.
Appears in 1 contract
Samples: Credit Agreement (Hanesbrands Inc.)
Restricted Payments, etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except:
(a) other than Restricted Payments made by Subsidiaries to the Borrower or wholly wholly-owned Subsidiaries;; provided, however, that, notwithstanding the foregoing, the Borrower may 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 during such Fiscal Year does not exceed the amount of the Excess Cash Flow for the immediately preceding Fiscal Year not otherwise required to be applied to a mandatory prepayment of the Loans pursuant to clause (g) of Section 3.1.1; provided further, however, that the Borrower may make any Restricted Payment permitted pursuant to this Section only so long as
(a) both before and after giving effect to any such Restricted Payment, no Default shall have occurred and be continuing; and
(b) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, Restricted Payments made by the Borrower or its Subsidiaries shall have delivered to Intermediate Holdco for the Borrower’s share of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent (A) financial statements prepared on a pro forma basis giving effect to such Restricted Payment for the period of four consecutive Fiscal Quarters ending with a calculation of such attributable taxes in detail the Fiscal Quarter most recently ended for which financial statements and form reasonably acceptable the Compliance Certificate relating thereto have been delivered to the Administrative Agent); and
(c) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, the Borrower may make Restricted Payments (including to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) Agent pursuant to Section 7.1.1 and in accordance with stock option plans or other benefit plans for management or employees (B) a certificate executed by an Authorized Officer of the Borrower and its Subsidiaries as established demonstrating that the financial results reflected in good faith by such financial statements would comply with the Borrower’s board requirements of directors and to otherwise pay Section 7.2.4 for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that the Fiscal Quarter in which such Restricted Payments shall not exceed $2,000,000 in any Fiscal YearPayment is to be made.
Appears in 1 contract
Restricted Payments, etc. The Borrower None of the Group Companies will not, and will not permit any of its Subsidiaries to, declare or make a Restricted Payment, or make any deposit for pay any Restricted PaymentPayments (other than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) of such Person), exceptexcept that:
(ai) Restricted Payments made by Subsidiaries to the Borrower or wholly owned Subsidiaries;
(b) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, Restricted Payments made by the Borrower or its Subsidiaries to Intermediate Holdco for the Borrower’s share any Wholly-Owned Subsidiary of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent); and
(c) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, the Borrower may make Restricted Payments to the Borrower or to any Wholly-Owned Subsidiary of the Borrower which is a Subsidiary Guarantor;
(ii) any non-Wholly-Owned Subsidiary of the Borrower may make Restricted Payments to the Borrower or to any Wholly-Owned Subsidiary of the Borrower which is a Subsidiary Guarantor or ratably to all holders of its outstanding Equity Interests;
(iii) the Borrower may make cash Restricted Payments to Holdings 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 to Intermediate Holdco so employee and compensation expenditures and other similar costs and expenses) incurred in the ordinary course of business that Intermediate Holdco may make paymentsare for the benefit of, or are attributable to, or are related to, including Restricted Paymentsthe financing or refinancing of, to Parent) pursuant to and Holdings’ Investment in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries as established up to an aggregate amount of $100,000 for each fiscal year, (B) the then currently due taxes payable by Parent pursuant to the Tax Sharing Agreement solely on account of the income of Holdings related to its Investment in good faith by the Borrower’s board of directors Borrower and to otherwise pay for G&A Expenses its Subsidiaries and other costs and the reasonable expenses of similar nature preparing returns reflecting such taxes;
(iv) the Borrower may make payments to Parent due under the Management Services Agreement to the extent such payments reflect normal compensation for services rendered by officers and directors of Intermediate Holdco and ParentParent and/or Orbimage in the ordinary course of business; provided, that such Restricted Payments shall not exceed and
(v) the Borrower may make payments to Parent up to $2,000,000 in any Fiscal Year6,000,000 for reimbursement of deposits made by Parent to the Seller as part of the aggregate purchase price under the Acquisition Agreement.
Appears in 1 contract
Samples: Credit Agreement (Orbimage Inc)
Restricted Payments, etc. The Holdings and Borrower will shall not, and will shall not permit any of its their respective Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except:
(a) Borrower may make Restricted Payments made to Holdings for the purpose of paying, so long as all proceeds are promptly used by Subsidiaries Holdings to pay, (i) reasonable fees for audit, legal and similar administrative services and other corporate overhead, (ii) customary fees to non-officer directors of Holdings who are not Affiliates of Holdings, (iii) out-of-pocket expenses to directors or observers of the Borrower or wholly owned Subsidiariesboard of directors of Holdings and (iv) taxes payable by Holdings;
(b) so long as at the time of such purchase (and after giving effect thereto) there shall exist no Default or Borrowing Base Deficiency has occurred Default, Holdings may (and is continuing, or shall be caused thereby, Borrower may make Restricted Payments made by to Holdings to permit Holdings to) repurchase Management Shares from any Management Investor (i) with proceeds of the key-man life insurance maintained on the life of such Management Investor and (ii) with cash in an aggregate amount not exceeding $1,000,000 per year;
(c) [reserved]
(i) any Subsidiary of Borrower may make Restricted Payments to Borrower or any Subsidiary Guarantor and (ii) any non-wholly-owned Subsidiary of Borrower may make Restricted Payments to its shareholders generally so long as Borrower or its Subsidiaries to Intermediate Holdco for Subsidiary which owns the Borrower’s equity interest in the Subsidiary making such Restricted Payment receives at least its proportionate share thereof (based upon its relative holding of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided that prior to equity interests in the Subsidiary making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent); and;
(ce) so long as no Default then exists or Borrowing Base Deficiency has occurred and is continuingwould result therefrom, or shall be caused thereby, the Borrower may make Restricted Payments (including to Intermediate Holdco so Holdings at the times, and in the amounts, necessary to enable Holdings to make any regularly scheduled interest or principal payments that Intermediate Holdco may make payments, including Restricted Payments, are due and payable on any Permitted Seller Notes or in respect of any Qualifying Subordinated Debt to Parent) the extent that such payments are permitted to be made pursuant to and in accordance with subsection 6.9;
(f) repurchases of Capital Stock of Holdings deemed to occur upon the exercise of stock option plans or other benefit plans for management or employees options if such Capital Stock represents a portion of the Borrower exercise price thereof and so long as no cash is paid or distributed by Holdings or any of its Subsidiaries as established in good faith by connection therewith; and
(g) the Borrower’s board of directors Tender Offer and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments the Merger shall not exceed $2,000,000 in any Fiscal Yearbe permitted.
Appears in 1 contract
Restricted Payments, etc. The Holdings and Borrower will shall not, and will shall not permit any of its their respective Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except:
(a) Borrower may make Restricted Payments made to Holdings for the purpose of paying, so long as all proceeds are promptly used by Subsidiaries Holdings to pay, (i) reasonable fees for audit, legal and similar administrative services and other corporate overhead, (ii) customary fees to non-officer directors of Holdings who are not Affiliates of Holdings, (iii) out-of-pocket expenses to directors or observers of the Borrower or wholly owned Subsidiariesboard of directors of Holdings and (iv) taxes payable by Holdings;
(b) so long as at the time of such purchase (and after giving effect thereto) there shall exist no Default or Borrowing Base Deficiency has occurred Default, Holdings may (and is continuing, or shall be caused thereby, Borrower may make Restricted Payments made by to Holdings to permit Holdings to) repurchase Management Shares from any Management Investor (i) with proceeds of the key-man life insurance maintained on the life of such Management Investor and (ii) with cash in an aggregate amount not exceeding $1,000,000 per year;
(c) [reserved]
(i) any Subsidiary of Borrower may make Restricted Payments to Borrower or any Subsidiary Guarantor and (ii) any non-wholly-owned Subsidiary of Borrower may make Restricted Payments to its shareholders generally so long as Borrower or its Subsidiaries to Intermediate Holdco for Subsidiary which owns the Borrower’s equity interest in the Subsidiary making such Restricted Payment receives at least its proportionate share thereof (based upon its relative holding of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided that prior to equity interests in the Subsidiary making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent); and;
(ce) so long as no Default then exists or Borrowing Base Deficiency has occurred and is continuingwould result therefrom, or shall be caused thereby, the Borrower may make Restricted Payments (including to Intermediate Holdco so Holdings at the times, and in the amounts, necessary to enable Holdings to make any regularly scheduled interest or principal payments that Intermediate Holdco may make payments, including Restricted Payments, are due and payable on any Permitted Seller Notes or in respect of any Qualifying Subordinated Debt to Parent) the extent that such payments are permitted to be made pursuant to and in accordance with subsection 6.9;
(f) repurchases of Capital Stock of Holdings deemed to occur upon the exercise of stock option plans or other benefit plans for management or employees options if such Capital Stock represents a portion of the Borrower exercise price thereof and so long as no cash is paid or distributed by Holdings or any of its Subsidiaries as established in good faith by the Borrower’s board of directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall not exceed $2,000,000 in any Fiscal Yearconnection therewith.
Appears in 1 contract
Restricted Payments, etc. The Borrower None of the Group Companies will not, and will not permit any of its Subsidiaries to, declare or make a Restricted Payment, or make any deposit for pay any Restricted PaymentPayments (other than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) of such Person), exceptexcept that:
(ai) any Subsidiary of the Borrower may make Restricted Payments made by Subsidiaries to the Borrower or wholly owned Subsidiariesto any Wholly-Owned Subsidiary of the Borrower;
(bii) the Borrower may make the Recapitalization Distribution; and
(iii) so long as no Default or Borrowing Base Deficiency Event of Default has occurred and is continuing, the Borrower may make payments of dividends, other distributions or other amounts for the purposes set forth in clauses (A) through (C) below:
(A) to Holdings in amounts equal to the amounts required for Holdings to pay franchise taxes, accounting, legal and other fees required to maintain its corporate existence and provide for other operating costs, in each case related to the Borrower, of up to $300,000 per fiscal year;
(B) (x) with respect to each taxable year (or portion thereof) of the Borrower (if the Borrower is not a Disregarded Entity) or Holdings (if the Borrower is a Disregarded Entity) in which each of the Borrower and Holdings qualifies as a Flow-Through Entity (each such taxable year or portion thereof, a “Tax Year”), to Holdings in an amount equal to the Permitted Tax Distributions; provided that in the case of the portion, if any, of any Permitted Tax Distribution that is proposed to be distributed for a particular Tax Year, which portion of such Permitted Tax Distribution is attributable to a Flow-Through Entity that is not a Subsidiary, such portion of such proposed Permitted Tax Distribution shall be caused thereby, Restricted Payments made limited to the excess of (1) the aggregate actual cash distributions received by the Borrower or its a Subsidiary from all Flow-Through Entities that are not Subsidiaries of the Borrower during the period commencing with the Closing Date and continuing to Intermediate Holdco and including the last day of the Tax Year in respect of which such proposed Permitted Tax Distribution is being determined over (2) the aggregate amount of such cash distributions described in the immediately preceding clause (1) that (I) have already been taken into account for purposes of making a Permitted Tax Distribution previously made and which was attributable to a Flow-Through Entity that was not a Subsidiary at the Borrower’s share time such Permitted Tax Distribution was made or (II) the Borrower previously used to make a Restricted Payment permitted by subsection (iii)(A) above, and (y) with respect to each taxable year (or portion thereof) of Holdings in which Holdings does not qualify as a Flow-Through Entity, to Holdings in amounts equal to amounts required for Holdings to pay Federal, state, local and foreign income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent); and
(c) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, extent such income taxes are attributable to the Borrower may make Restricted Payments (including to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to and in accordance with stock option plans or other benefit plans for management or employees taxable income of the Borrower and its Subsidiaries; or
(C) after a Qualifying IPO, to Holdings in amounts equal to amounts expended by Holdings to purchase, repurchase, redeem, retire or otherwise acquire for value Equity Interests of Holdings owned by employees, former employees, directors or former directors, consultants or former consultants of the Borrower or any of its Subsidiaries as established in good faith by the Borrower’s board (or permitted transferees of such employees, former employees, directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parentor former directors, consultants or foreign consultants); provided, however, that such Restricted Payments shall not the aggregate amount paid, loaned or advanced to Holdings pursuant to this clause (C) will not, in the aggregate, exceed $2,000,000 1,000,000 per fiscal year of the Borrower, plus any amounts contributed by Holdings to the Borrower as a result of sales of shares of Equity Interests to employees, directors and consultants (not including any amounts received by Holdings in any Fiscal Yearconnection with the Recapitalization).
Appears in 1 contract
Restricted Payments, etc. The Holdings and each Borrower will not, and will not permit any of its their respective Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except:other than
(a) Restricted Payments made by Subsidiaries to the Borrower Borrowers or wholly owned SubsidiariesRestricted Subsidiaries of either Borrower;
(b) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, Restricted Payments made by the Borrowers and the Subsidiaries, as applicable, to Holdings in accordance with the Tax Sharing Agreement, but in aggregate amounts no greater than, and limited to the amount necessary to enable Holdings to make payments in cash in respect of the aggregate federal income tax liability then due of the "affiliated group" (within the meaning of Section 1504(a)(1) of the Code) of which Holdings is the common parent corporation; provided, however, that any payment required to be made by any Borrower or its Subsidiaries Subsidiary to Intermediate Holdco for Holdings in accordance with the Borrower’s share of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided Tax Sharing Agreement that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable otherwise would be prohibited pursuant to the Administrative Agent); andpreceding limitation may be paid directly to another Borrower or Subsidiary, as applicable, to the extent that Holdings would have been required to make a payment to such other Borrower or Subsidiary in accordance with the Tax Sharing Agreement;
(c) so long as no Default Restricted Payments made by the Borrowers to Holdings solely to the extent necessary to enable Holdings to pay Management Fees in an aggregate amount of up to $1,000,000 in any Fiscal Year;
(d) Restricted Payments made by the Borrowers to Holdings solely to the extent necessary to enable Holdings to pay for general administrative and operating expenses of Holdings;
(e) Restricted Payments made by the Borrowers to Holdings solely to the extent necessary to enable Holdings to repurchase, redeem or Borrowing Base Deficiency has occurred and is continuingotherwise acquire or retire for value any Capital Securities of Holdings, or shall be caused therebyany warrant, option or other right to acquire Capital Securities of Holdings, held by any member of management or employee of Holdings or any of its Subsidiaries pursuant to any management equity subscription agreement or stock option agreement as a result of the Borrower may make cessation of the employment such Person (by death, disability or otherwise) in an aggregate amount of up to $5,000,000 in each Fiscal Year;
(i) Restricted Payments made by the Borrowers to Holdings (including Restricted Payments made by WRC on the WRC Mirror PIK Preferred Equity) on or subsequent to Intermediate Holdco so that Intermediate Holdco may November 17, 2004 solely to the extent necessary to enable Holdings to make paymentsscheduled payments of dividends on the PIK Preferred Equity and Holdings does in fact make such scheduled payments thereon and (ii) Restricted Payments made by CLI and WRC on or subsequent to November 17, including Restricted Payments2004 to make scheduled payments of dividends on the CLI PIK Preferred Equity and the WRC PIK Preferred Equity (other than any such Capital Securities held by Holdings), to Parent) pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries as established in good faith by the Borrower’s board of directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parentrespectively; provided, that such Restricted Payments may only occur so long as, in each case, the conditions set forth in the proviso to this Section are satisfied and at the time of such payments and after giving effect to the making of each such Restricted Payment, the Leverage Ratio for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered by Holdings to the Agents pursuant to clause (d) of Section 7.1.1 as calculated on a pro forma basis shall be less than 3.00:1.0; and
(i) Restricted Payments made by the Borrowers to Holdings solely to the extent necessary to enable Holdings to redeem shares of the PIK Preferred Equity (other than any such Capital Securities held by Holdings or WRC) or (ii) Restricted Payments made by CLI and WRC to redeem shares of the CLI PIK Preferred Equity and the WRC PIK Preferred Equity (other than any such Capital Securities held by Holdings), respectively, in each case, using Net Equity Proceeds; provided, that such Restricted Payments may only occur so long as the conditions set forth in the proviso to this Section are satisfied and at the time of such payments and after giving effect to the making of each such Restricted Payment, the Leverage Ratio for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered by Holdings to the Agents pursuant to clause (d) of Section 7.1.1 as calculated on a pro forma basis shall be less than 4.25:1.0;
(h) Restricted Payments by Holdings on the Holdings Junior Preferred Stock or PIK Preferred Equity which dividends are paid solely by, at the option of Holdings, (i) the issuance of additional shares of Holdings Junior Preferred Stock or PIK Preferred Equity, respectively, or (ii) adding an amount equal to the dividends otherwise payable therein for the liquidation preference of such Holdings Junior Preferred Stock or PIK Preferred Equity, respectively. provided, however, that no Restricted Payments under clause (c), (e), (f), (g) or (h) may be made if (A) any Specified Default shall have occurred and be continuing on the date such Restricted Payment is declared or made, or a Specified Default would result from the making of any such Restricted Payment and (B) after giving effect to the making of each such Restricted Payment, the Borrowers would not exceed $2,000,000 be in any pro forma compliance with the covenant set forth in Section 7.2.4 for the most recently ended Fiscal Year.Quarter for which a Compliance Certificate was delivered by Holdings to the Agents pursuant to clause (c) of Section 7.2.2;
Appears in 1 contract
Samples: Credit Agreement (WRC Media Inc)
Restricted Payments, etc. The Borrower will notDeclare or make, and will not permit any of its Subsidiaries todirectly or indirectly, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, exceptexcept that:
(ai) each Restricted Subsidiary may make Restricted Payments made by Subsidiaries to the Borrower or wholly owned Subsidiariesany other Restricted Subsidiary (so long as no Event of Default shall have occurred and be continuing at the time of any action or would result therefrom) and any other Person that owns a direct Equity Interest in such Restricted Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(bii) the Loan Parties and each Restricted Subsidiary may declare and make Restricted Payments payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Loan Party or Restricted Subsidiary;
(iii) so long as no Default or Borrowing Base Deficiency has occurred Event of Default is then in existence or would otherwise arise therefrom, Holdings may (and is continuing, or shall be caused thereby, the Restricted Payments made by the Borrower or its Subsidiaries to Intermediate Holdco for the Borrower’s share of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail Holdings may declare and form reasonably acceptable to the Administrative Agent); and
(c) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, the Borrower may make Restricted Payments to Holdings not to exceed an amount necessary to permit Holdings to) redeem or repurchase Equity Interests (including to Intermediate Holdco so that Intermediate Holdco may make paymentsor Equity Equivalents) from future, including Restricted Paymentspresent or former officers, to Parentemployees, managers, consultants and directors of any Group Company (or their estates, spouses or former spouses) (x) upon the death, permanent disability, retirement or termination of employment of any such Person and (y) pursuant to and in accordance with any management equity plan or stock option plans plan or any other management benefit plans for management or employees employee benefit plan;
(iv) the Restricted Subsidiaries of Holdings may declare and make Restricted Payments to Holdings not to exceed an amount necessary to permit Holdings to pay (A) general corporate overhead expenses of Holdings (including indemnification claims made by directors or officers of Holdings) to the extent such expenses are attributable to the ownership or operation of Holdings 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 Holdings and the Restricted Subsidiaries and, to the extent of the Borrower and amount actually received from its Subsidiaries as established Unrestricted Subsidiaries, in good faith by amounts required to pay such taxes to the Borrower’s board extent attributable to the income of directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall not exceed $2,000,000 in any Fiscal Year.Unrestricted Subsidiaries;
Appears in 1 contract
Restricted Payments, etc. The Borrower None of the Group Companies will not, and will not permit any of its Subsidiaries to, declare or make a Restricted Payment, or make any deposit for pay any Restricted PaymentPayments (other than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) of such Person), exceptexcept that:
(ai) any Subsidiary of the Borrower may make Restricted Payments made by Subsidiaries to the Borrower or wholly owned Subsidiariesto any Wholly-Owned Subsidiary of the Borrower (other than GCA Finance);
(bii) the Borrower may make the Recapitalization Distribution; and
(iii) so long as no Default or Borrowing Base Deficiency Event of Default has occurred and is continuing, the Borrower may make payments of dividends, other distributions or other amounts for the purposes set forth in clauses (A) through (C) below:
(A) to Holdings in amounts equal to the amounts required for Holdings to pay franchise taxes, accounting, legal and other fees required to maintain its corporate existence and provide for other operating costs, in each case related to the Borrower, of up to $300,000 per fiscal year;
(B) (x) with respect to each taxable year (or portion thereof) of the Borrower (if the Borrower is not a Disregarded Entity) or Holdings (if the Borrower is a Disregarded Entity) in which each of the Borrower and Holdings qualifies as a Flow-Through Entity (each such taxable year or portion thereof, a “Tax Year”), to Holdings in an amount equal to the Permitted Tax Distributions; provided that in the case of the portion, if any, of any Permitted Tax Distribution that is proposed to be distributed for a particular Tax Year, which portion of such Permitted Tax Distribution is attributable to a Flow-Through Entity that is not a Subsidiary, such portion of such proposed Permitted Tax Distribution shall be caused thereby, Restricted Payments made limited to the excess of (1) the aggregate actual cash distributions received by the Borrower or its a Subsidiary from all Flow-Through Entities that are not Subsidiaries of the Borrower during the period commencing with the Closing Date and continuing to Intermediate Holdco and including the last day of the Tax Year in respect of which such proposed Permitted Tax Distribution is being determined over (2) the aggregate amount of such cash distributions described in the immediately preceding clause (1) that (I) have already been taken into account for purposes of making a Permitted Tax Distribution previously made and which was attributable to a Flow-Through Entity that was not a Subsidiary at the Borrower’s share time such Permitted Tax Distribution was made or (II) the Borrower previously used to make a Restricted Payment permitted by subsection (iii)(A) above, and (y) with respect to each taxable year (or portion thereof) of Holdings in which Holdings does not qualify as a Flow-Through Entity, to Holdings in amounts equal to amounts required for Holdings to pay Federal, state, local and foreign income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent); and
(c) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, extent such income taxes are attributable to the Borrower may make Restricted Payments (including to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to and in accordance with stock option plans or other benefit plans for management or employees taxable income of the Borrower and its Subsidiaries; or
(C) after a Qualifying IPO, to Holdings in amounts equal to amounts expended by Holdings to purchase, repurchase, redeem, retire or otherwise acquire for value Equity Interests of Holdings owned by employees, former employees, directors or former directors, consultants or former consultants of the Borrower or any of its Subsidiaries as established in good faith by the Borrower’s board (or permitted transferees of such employees, former employees, directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parentor former directors, consultants or foreign consultants); provided, however, that such Restricted Payments shall not the aggregate amount paid, loaned or advanced to Holdings pursuant to this clause (C) will not, in the aggregate, exceed $2,000,000 1,000,000 per fiscal year of the Borrower, plus any amounts contributed by Holdings to the Borrower as a result of sales of shares of Equity Interests to employees, directors and consultants (not including any amounts received by Holdings in any Fiscal Yearconnection with the Recapitalization).
Appears in 1 contract
Restricted Payments, etc. The Parent Borrower will not, and will not permit any of its Subsidiaries (other than a Receivables Subsidiary) to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except:
other than (a) Restricted Payments made by Subsidiaries to the Parent Borrower or wholly owned Subsidiaries;
, (b) cashless exercises of stock options, (c) cash payments by Parent Borrower in lieu of the issuance of fractional shares upon exercise or conversion of Equity Equivalents, (d) Restricted Payments in connection with the share repurchases required by the employee stock ownership programs or required under employee agreements, (e) so long as no Specified Default or Borrowing Base Deficiency has occurred and is continuingcontinuing or would result therefrom, or shall be caused therebyand both before and after giving effect to such Restricted Payment as if such Restricted Payment had been made on the last day of the Measurement Period, the Parent Borrower is in compliance with Section 7.2.4 for such Measurement Period, Restricted Payments made not otherwise permitted by this Section 7.2.6 in an aggregate amount not to exceed the Borrower or its Subsidiaries to Intermediate Holdco for the Borrower’s share of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco Available Amount and (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent); and
(cf) so long as no Specified Default or Borrowing Base Deficiency has occurred and is continuingcontinuing or would result therefrom, or shall be caused therebyRestricted Payments not otherwise permitted by this Section 7.2.6 to the extent that, both before and after giving effect to such Restricted Payment as if such Restricted Payment had been made on the last day of the Measurement Period, the Borrower may make Restricted Payments (including to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to and in accordance with stock option plans or other benefit plans Leverage Ratio for management or employees of the Borrower and its Subsidiaries as established in good faith by the Borrower’s board of directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall Measurement Period would not exceed $2,000,000 in any Fiscal Year3.75:1.00.
Appears in 1 contract
Samples: Credit Agreement (Hanesbrands Inc.)
Restricted Payments, etc. The Holdings and each Borrower will not, and will not permit any of its their respective Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except:other than
(a) Restricted Payments made by Subsidiaries to the Borrower Borrowers or wholly owned SubsidiariesRestricted Subsidiaries of either Borrower;
(b) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, Restricted Payments made by the Borrowers and the Subsidiaries, as applicable, to Holdings in accordance with the Tax Sharing Agreement, but in aggregate amounts no greater than, and limited to the amount necessary to enable Holdings to make payments in cash in respect of the aggregate federal income tax liability then due of the "affiliated group" (within the meaning of Section 1504(a)(1) of the Code) of which Holdings is the common parent corporation; provided, however, that any payment required to be made by any Borrower or its Subsidiaries Subsidiary to Intermediate Holdco for Holdings in accordance with the Borrower’s share of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided Tax Sharing Agreement that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable otherwise would be prohibited pursuant to the Administrative Agent); andpreceding limitation may be paid directly to another Borrower or Subsidiary, as applicable, to the extent that Holdings would have been required to make a payment to such other Borrower or Subsidiary in accordance with the Tax Sharing Agreement;
(c) so long as no Default Restricted Payments made by the Borrowers to Holdings solely to the extent necessary to enable Holdings to pay Management Fees in an aggregate amount of up to $1,000,000 in any Fiscal Year thereafter;
(d) Restricted Payments made by the Borrowers to Holdings solely to the extent necessary to enable Holdings to pay for general administrative and operating expenses of Holdings;
(e) Restricted Payments made by the Borrowers to Holdings solely to the extent necessary to enable Holdings to repurchase, redeem or Borrowing Base Deficiency has occurred and is continuingotherwise acquire or retire for value any Capital Securities of Holdings, or shall be caused therebyany warrant, option or other right to acquire Capital Securities of Holdings, held by any member of management or employee of Holdings or any of its Subsidiaries pursuant to any management equity subscription agreement or stock option agreement as a result of the Borrower may make cessation of the employment such Person (by death, disability or otherwise) in an aggregate amount of up to $1,000,000 in the 1999 Fiscal Year and $5,000,000 in each Fiscal Year thereafter;
(i) Restricted Payments made by the Borrowers to Holdings (including Restricted Payments made by WRC on the WRC Mirror PIK Preferred Equity) on or subsequent to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to and in accordance with stock option plans or other benefit plans for management or employees the fifth anniversary of the Borrower Closing Date solely to the extent necessary to enable Holdings to make scheduled payments of dividends on the PIK Preferred Equity and its Subsidiaries as established Holdings does in good faith fact make such scheduled payments thereon and (ii) Restricted Payments made by CLI and WRC on or subsequent to the Borrower’s board fifth anniversary of directors the Closing Date to make scheduled payments of dividends on the CLI PIK Preferred Equity and to otherwise pay for G&A Expenses and the WRC PIK Preferred Equity (other costs and expenses of similar nature of Intermediate Holdco and Parentthan any such Capital Securities held by Holdings), respectively; provided, that such Restricted Payments may only occur so long as, in each case, the conditions set forth in the proviso to this Section are satisfied and at the time of such payments and after giving effect to the making of each such Restricted Payment, the Leverage Ratio for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered by Holdings to the Agents pursuant to clause (d) of Section 7.1.1 as calculated on a pro forma basis shall be less than 3.00:1.0; and
(g) following the making of any mandatory prepayment required under clause (h) of Section 3.1.1 in respect of Net Equity Proceeds, (i) Restricted Payments made by the Borrowers to Holdings solely to the extent necessary to enable Holdings to redeem shares of the PIK Preferred Equity (other than any such Capital Securities held by Holdings or WRC) or (ii) Restricted Payments made by CLI and WRC to redeem shares of the CLI PIK Preferred Equity and the WRC PIK Preferred Equity (other than any such Capital Securities held by Holdings), respectively, in each case, using such Net Equity Proceeds remaining following such mandatory prepayment in an amount not to exceed $2,000,000 the excess of (x) the amount of Net Equity Proceeds remaining from such mandatory prepayment over (y) the amount of any such Net Equity Proceeds used to redeem any Subordinated Notes pursuant to Section 7.2.8; provided, that such Restricted Payments may only occur so long as the conditions set forth in the proviso to this Section are satisfied and at the time of such payments and after giving effect to the making of each such Restricted Payment, the Leverage Ratio for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered by Holdings to the Agents pursuant to clause (d) of Section 7.1.1 as calculated on a pro forma basis shall be less than 4.25:1.0;
(h) Restricted Payments by Holdings on the Holdings Junior Preferred Stock or PIK Preferred Equity which dividends are paid solely by, at the option of Holdings, (i) the issuance of additional shares of Holdings Junior Preferred Stock or PIK Preferred Equity, respectively, or (ii) adding an amount equal to the dividends otherwise payable therein for the liquidation preference of such Holdings Junior Preferred Stock or PIK Preferred Equity, respectively. provided, however, that no Restricted Payments under clause (c), (e), (f), (g) or (h) may be made if (A) any Specified Default shall have occurred and be continuing on the date such Restricted Payment is declared or made, or a Specified Default would result from the making of any such Restricted Payment and (B) after giving effect to the making of each such Restricted Payment, the Borrower would not be in pro forma compliance with the covenants set forth in Section 7.2.4 for the most recently ended Fiscal Year.Quarter for which a Compliance Certificate was delivered by Holdings to the Agents pursuant to clause (c) of Section 7.2.2;
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Samples: Credit Agreement (WRC Media Inc)
Restricted Payments, etc. The Each of Holdings, Intermediate Holdings and each Borrower will not, and will not permit any of its the Restricted Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except:
other than (a) Restricted Payments made by Subsidiaries to the Borrower Company or wholly owned Subsidiaries;
Subsidiaries of the Company and (b) the Company may make Restricted Payments to Intermediate Holdings and Intermediate Holdings may make Restricted Payments to Holdings in amounts sufficient to pay (i) so long as no Specified Default or Borrowing Base Deficiency has occurred and is continuing, continuing or shall would be caused created thereby, Restricted Payments made by required semi- -104- 105 annual dividends on and any mandatory redemption of Holdings" Convertible Preferred Stock as in effect on the Borrower or its Subsidiaries to Intermediate Holdco for the Borrower’s share of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco date hereof, (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent); and
(cii) so long as no Specified Default or Borrowing Base Deficiency has occurred and is continuing, continuing or shall would be caused created thereby, scheduled payments of interest on and, when due, principal of Holdings" Convertible Subordinated Notes, (iii) salaries, wages, employee benefits and direct expenses for Holdings" employees, (iv) insurance, (v) public company expenses, including but not limited to, accounting fees, director's fees, legal fees and printing fees and related expenses, (vi) payments under the Borrower may make Restricted Payments Tax Sharing Agreement, (vii) so long as no Specified Default has occurred and is continuing or would be created thereby, up to $4,000,000 per Fiscal Year (including up to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries as established in good faith by the Borrower’s board of directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall not exceed $2,000,000 in any Fiscal Yearper year to buyback Holdings" common stock under Holdings" stock buyback program) for various other expenses and (viii) payments on the Intermediate Holdings Asset Bridge Notes to the extent permitted by clause (c) of Section 7.2.8.
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Restricted Payments, etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, exceptother than:
(a) Restricted Payments made by Subsidiaries to the Borrower or wholly wholly-owned Subsidiaries;
(b) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, Restricted Payments made by the Borrower or its Subsidiaries to Intermediate Holdco for Parent (i) pursuant to the Borrower’s share Tax Sharing Agreement; provided that the amount of income such Restricted Payment shall not exceed the amount of taxes calculated as if that the Borrower were filing would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries, (ii) to pay franchise taxes independently and other overhead expenses of Intermediate Holdco Parent in an amount not to exceed $1,000,000 in any Fiscal Year and (provided that prior iii) in order to making such Restricted Payment, Borrower shall provide permit Parent to pay Additional Interest (as defined in the Administrative Agent with a calculation of such attributable taxes Parent Notes Indenture (as defined in detail and form reasonably acceptable to the Administrative AgentParent Guaranty); and) in cash in an aggregate amount not exceeding $200,000;
(c) so long as no Default or Borrowing Base Deficiency has occurred repurchases of Capital Securities from former employees, directors and is continuing, or shall be caused thereby, the Borrower may make Restricted Payments (including to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to and in accordance with stock option plans or other benefit plans for management or employees officers of the Borrower Parent and its Subsidiaries as established in good faith by the Borrower’s board of directors and an amount not to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall not exceed $2,000,000 in any Fiscal Year; provided that, to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually made by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forward;
(d) repurchases of Capital Securities deemed to occur upon exercise of stock options if such Capital Securities represents a portion of the exercise price of such options;
(e) Restricted Payments made by the Borrower to Parent that are necessary to consummate the Transaction;
(f) other than during any Dividend Suspension Period (i) so long as no Default has occurred and is continuing, payments to Parent to (A) service cash interest payments on the Parent Notes that are due and payable or are expected to become due or payable within 10 days of such Restricted Payment, (B) fund redemptions or open market purchases of Parent Notes, or (C) fund redemptions or open market purchases of Parent's Capital Securities and (ii) so long as no Default has occurred and is continuing at the time such payment is declared and so long as no Event of Default has occurred and is continuing at the time such payment is made, payments to Parent to fund dividend payments on Parent's Capital Securities; provided that the aggregate amount of all payments pursuant to this clause (f) shall not exceed Cumulative Distributable Cash; and
(g) the Monitoring Agreement Buyout Payment.
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Restricted Payments, etc. The Holdings and each Borrower will not, and will not permit any of its their respective Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except:other than
(a) Restricted Payments made by Subsidiaries to the Borrower Borrowers or wholly owned SubsidiariesRestricted Subsidiaries of either Borrower;
(b) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, Restricted Payments made by the Borrowers and the Subsidiaries, as applicable, to Holdings in accordance with the Tax Sharing Agreement, but in aggregate amounts no greater than, and limited to the amount necessary to enable Holdings to make payments in cash in respect of the aggregate federal income tax liability then due of the "affiliated group" (within the meaning of Section 1504(a)(1) of the Code) of which Holdings is the common parent corporation; provided, however, that any payment required to be made by any Borrower or its Subsidiaries Subsidiary to Intermediate Holdco for Holdings in accordance with the Borrower’s share of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided Tax Sharing Agreement that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable otherwise would be prohibited pursuant to the Administrative Agent); andpreceding limitation may be paid directly to another Borrower or Subsidiary, as applicable, to the extent that Holdings would have been required to make a payment to such other Borrower or Subsidiary in accordance with the Tax Sharing Agreement;
(c) so long as no Default Restricted Payments made by the Borrowers to Holdings solely to the extent necessary to enable Holdings to pay Management Fees in an aggregate amount of up to $1,000,000 in any Fiscal Year;
(d) Restricted Payments made by the Borrowers to Holdings solely to the extent necessary to enable Holdings to pay for general administrative and operating expenses of Holdings;
(e) Restricted Payments made by the Borrowers to Holdings solely to the extent necessary to enable Holdings to repurchase, redeem or Borrowing Base Deficiency has occurred and is continuingotherwise acquire or retire for value any Capital Securities of Holdings, or shall be caused therebyany warrant, option or other right to acquire Capital Securities of Holdings, held by any member of management or employee of Holdings or any of its Subsidiaries pursuant to any management equity subscription agreement or stock option agreement as a result of the Borrower may make cessation of the employment such Person (by death, disability or otherwise) in an aggregate amount of up to $5,000,000 in each Fiscal Year;
(i) Restricted Payments made by the Borrowers to Holdings (including Restricted Payments made by WRC on the WRC Mirror PIK Preferred Equity) on or subsequent to Intermediate Holdco so that Intermediate Holdco may November 17, 2004 solely to the extent necessary to enable Holdings to make paymentsscheduled payments of dividends on the PIK Preferred Equity and Holdings does in fact make such scheduled payments thereon and (ii) Restricted Payments made by CLI and WRC on or subsequent to November 17, including Restricted Payments2004 to make scheduled payments of dividends on the CLI PIK Preferred Equity and the WRC PIK Preferred Equity (other than any such Capital Securities held by Holdings), to Parent) pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries as established in good faith by the Borrower’s board of directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parentrespectively; provided, that such Restricted Payments may only occur so long as, in each case, the conditions set forth in the proviso to this Section are satisfied and at the time of such payments and after giving effect to the making of each such Restricted Payment, the Leverage Ratio for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered by Holdings to the Arrangers pursuant to clause (d) of Section 7.1.1 as calculated on a pro forma basis shall be less than 4.75:1.0;
(i) Restricted Payments made by the Borrowers to Holdings solely to the extent necessary to enable Holdings to redeem shares of the PIK Preferred Equity (other than any such Capital Securities held by Holdings or WRC) or (ii) Restricted Payments made by CLI and WRC to redeem shares of the CLI PIK Preferred Equity and the WRC PIK Preferred Equity (other than any such Capital Securities held by Holdings), respectively, in each case, using Net Equity Proceeds; provided, that such Restricted Payments may only occur so long as the conditions set forth in the proviso to this Section are satisfied and at the time of such payments and after giving effect to the making of each such Restricted Payment, the Leverage Ratio for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered by Holdings to the Arrangers pursuant to clause (d) of Section 7.1.1 as calculated on a pro forma basis shall be less than 4.75:1.0;
(h) Restricted Payments by Holdings on the Holdings Junior Preferred Stock or PIK Preferred Equity which dividends are paid solely by, at the option of Holdings, (i) the issuance of additional shares of Holdings Junior Preferred Stock or PIK Preferred Equity, respectively, or (ii) adding an amount equal to the dividends otherwise payable therein for the liquidation preference of such Holdings Junior Preferred Stock or PIK Preferred Equity, respectively; or
(i) Restricted Payment by Holdings which are funded solely with Net Equity Proceeds resulting from the issuance of Capital Securities of Holdings; provided, however, that no Restricted Payments under clause (c), (e), (f), (g), (h) or (i) may be made if (A) any Default shall have occurred and be continuing on the date such Restricted Payment is declared or made, or a Default would result from the making of any such Restricted Payment and (B) after giving effect to the making of each such Restricted Payment, the Borrowers would not exceed $2,000,000 be in any pro forma compliance with the covenant set forth in Section 7.2.4 for the most recently ended Fiscal YearQuarter for which a Compliance Certificate was delivered by Holdings to the Arrangers pursuant to clause (c) of Section 7.2.2.
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Restricted Payments, etc. (a) The Borrower will not make any Restricted Payment, other than dividend payments needed to pay the tax liability and legal, accounting and other professional fees and expenses of the Managing General Partner if (i) there exists a Default or an Event of Default or if after giving effect to such Restricted Payment a Default or an Event of Default would exist, or (ii) the pro forma ratio of the Coverage Test is less than 2.00 if prior to December 31, 1997, 2.25 if thereafter but prior to December 31, 1998, or 2.50 thereafter, for the period of four Fiscal Quarters immediately preceding the date of such Restricted Payment. Other than this restriction, the Borrower may make quarterly Restricted Payments in an amount not to exceed Available Cash in the preceding Fiscal Quarter. Upon satisfaction of the Coverage Test and subsequent declaration by the Borrower, Restricted Payments must be made within 60 days and if the payment would have been permitted as of the date of such declaration, such payment shall be permitted if made during such 60 day period. Notwithstanding the foregoing provisions of this section, no payment made by the Borrower on the Closing Date and referred to in the Registration Statement shall be deemed to constitute a Restricted Payment.
(b) The Borrower will not, and will not cause or permit any of its Subsidiaries Restricted Subsidiary to, declare directly or make a indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of such Restricted Payment, Subsidiary to (a) pay dividends or make any deposit for other distributions on or in respect of its capital stock, or pay any Restricted Paymentindebtedness owed to the Borrower, except:
(ab) Restricted Payments made by Subsidiaries make loans or advances to the Borrower or wholly owned Subsidiaries;
(b) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, Restricted Payments made by the Borrower or its Subsidiaries to Intermediate Holdco for the Borrower’s share of income taxes calculated as if the Borrower were filing for taxes independently of Intermediate Holdco (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent); and
(c) so long as no Default transfer any of its properties or Borrowing Base Deficiency has occurred and is continuingassets to the Borrower, except for such encumbrances or shall be caused thereby, the Borrower may make Restricted Payments (including to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to and restrictions existing under or by reason of customary non-assignment provisions in accordance with stock option plans any lease governing a leasehold interest or other benefit plans for management or employees contract entered into in the ordinary course of the Borrower and its Subsidiaries as established in good faith by the Borrower’s board of directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall not exceed $2,000,000 in any Fiscal Year.business consistent with past practices. SECTION
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Restricted Payments, etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, exceptother than:
(a) Restricted Payments made by Subsidiaries to the Borrower or wholly wholly-owned Subsidiaries;
(b) so long as no Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, Restricted Payments made by the Borrower or its Subsidiaries to Intermediate Holdco for Parent (i) pursuant to the Borrower’s share Tax Sharing Agreement; provided that the amount of income such Restricted Payment shall not exceed the amount of taxes calculated as if that the Borrower were filing would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries, (ii) to pay franchise taxes independently and other overhead expenses of Intermediate Holdco Parent in an amount not to exceed $1,000,000 in any Fiscal Year and (provided that prior iii) in order to making such Restricted Payment, Borrower shall provide permit Parent to pay Additional Interest (as defined in the Administrative Agent with a calculation of such attributable taxes Parent Notes Indenture (as defined in detail and form reasonably acceptable to the Administrative AgentParent Guaranty); and) in cash in an aggregate amount not exceeding $200,000;
(c) so long as no Default or Borrowing Base Deficiency has occurred repurchases of Capital Securities from former employees, directors and is continuing, or shall be caused thereby, the Borrower may make Restricted Payments (including to Intermediate Holdco so that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to and in accordance with stock option plans or other benefit plans for management or employees officers of the Borrower Parent and its Subsidiaries as established in good faith by the Borrower’s board of directors and an amount not to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments shall not exceed $2,000,000 in any Fiscal Year; provided that, to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually made by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forward;
(d) repurchases of Capital Securities deemed to occur upon exercise of stock options if such Capital Securities represents a portion of the exercise price of such options;
(e) Restricted Payments made by the Borrower to Parent that are necessary to consummate the Transaction;
(f) other than during any Dividend Suspension Period (i) so long as no Default has occurred and is continuing, payments to Parent to (A) service cash interest payments on the Parent Notes that are due and payable or are expected to become due or payable within 10 days of such Restricted Payment, (B) fund redemptions or open market purchases of Parent Notes, or (C) fund redemptions or open market purchases of Parent’s Capital Securities and (ii) so long as no Default has occurred and is continuing at the time such payment is declared and so long as no Event of Default has occurred and is continuing at the time such payment is made, payments to Parent to fund dividend payments on Parent’s Capital Securities; provided that the aggregate amount of all payments pursuant to this clause (f) shall not exceed Cumulative Distributable Cash; and
(g) the Monitoring Agreement Buyout Payment.
Appears in 1 contract
Restricted Payments, etc. The Borrower None of the Consolidated Parties will, or will not, and will not permit any of its their respective Subsidiaries to, declare or make a Restricted Payment, or make any deposit for pay any Restricted PaymentPayments, exceptexcept that:
(ai) a Consolidated Party may pay dividends payable solely in Capital Stock, of such Person;
(ii) subject to clause (v) below, any Subsidiary of the Borrower may pay Restricted Payments made by Subsidiaries to the Borrower or wholly owned Subsidiariesto any Wholly-Owned Subsidiary of the Borrower;
(biii) so long as no Default or Borrowing Base Deficiency has occurred Event of Default is then in existence or would otherwise arise therefrom, the Borrower may pay cash dividends and is continuingcash distributions to ASG, ASG may pay cash dividends and cash distributions in respect of the ASG Preferred Interests to ASC and the Parent, and ASC may in turn pay cash dividends to the Parent and the Parent may in turn pay cash dividends to Holdings if Holdings promptly uses the proceeds to redeem or repurchase Capital Stock (or options to purchase such Capital Stock), in each case, from (1) officers, managing directors, employees and directors of any Consolidated Party or ASC Management Inc., a Delaware corporation (or their estates) upon the death, permanent disability, retirement or termination of 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 ASLP or Holdings, or shall be caused thereby(2) other holders of Capital Stock of ASLP or Holdings; provided that in all such cases the aggregate amount of all cash dividends paid in respect of all such shares so redeemed or repurchased does not exceed $5,000,000 during any fiscal year of the Borrower;
(iv) the Borrower may distribute cash to ASG, Restricted Payments made and ASG in turn may distribute cash to the Parent and ASC, and ASC may in turn distribute cash to the Parent, and the Parent may distribute cash to Holdings, in each case, in an amount sufficient (1) to allow ASC to pay, and 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 estimated 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, as determined in good faith by the Borrower or in consultation with its Subsidiaries tax advisors (“Permitted Tax Dividends”), and (2) to Intermediate Holdco for pay franchise taxes and other fees required to maintain the existence of each of ASLP, Holdings, the Parent, ASC, ASG, and ASG Finance and other 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, the Parent, ASC, ASG, and ASG Finance, as applicable; provided that the aggregate amount of such cash distributions made to Holdings, the Parent, ASC, ASG, and ASG Finance in respect of such taxes, fees and expenses paid pursuant to this subclause (iv)(2) shall not exceed $1,000,000 during any fiscal year of the Borrower’s share ;
(v) the payment of income taxes calculated as if any dividend by a Consolidated Subsidiary of the Borrower were filing for taxes independently of Intermediate Holdco (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent)holders of its common Capital Stock on a pro-rata basis shall be permitted;
(1) repurchases of Capital Stock deemed to occur upon the cashless exercise of stock options and warrants; and (2) cash paid in lieu of fractional Equity Interests (or dividends or distributions for such purpose) in an aggregate amount not to exceed $50,000 shall be permitted; and
(cvii) so long as no Default or Borrowing Base Deficiency has Event of Default is then in existence or would otherwise arise therefrom, ASC may pay cash dividends to the Parent, and the Parent may in turn pay cash dividends to Holdings, in respect of ASC’s Capital Stock from time to time in amounts equal to any amounts received by ASC from the United States Internal Revenue Service as tax refunds, and Holdings may make distributions to the Holdings Owners;
(viii) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, ASG may make cash dividends to the Parent or ASC, ASC may in turn make cash dividends to the Parent, and the Parent may in turn make cash dividends to Holdings, and Holdings may make (1) cash dividends to the Holdings Owners (the “Holdings Dividend”), (2) cash distributions in the form of management bonuses and other payments in respect of the Holdings Dividend and (3) may make payments in respect of the redemption of certain preferred equity units and notes issued by Holdings, and accrued interest and discounts in respect of such preferred equity units and notes;
(ix) ASG Finance may make the ASG Finance Dividends, contemplated under Section 6.13;
(x) the Borrower may (A) make cash dividends to ASG, and ASG may in turn make cash dividends to the Parent or ASC, and ASC may in turn make cash dividends to the Parent, and the Parent may in turn make cash dividends to Holdings, and Holdings may in turn make cash distributions to one or more of the Holdings Owners and (B) make Restricted Payments with respect to the Discount Notes; provided that the aggregate amount of cash dividends and the other Restricted Payments made under subparts (A) and (B) above shall not exceed the Cumulative Distributable Excess Cash Flow; provided further that, in each case, (1) no Default or Event of Default shall have occurred and be continuing immediately before or after makings such Restricted Payments, (2) the Borrower shall have delivered to the Administrative Agent a Pro-Forma Compliance Certificate demonstrating that upon making such Restricted Payments the Credit Parties will be in compliance with all of the financial covenants set forth in Section 7.18 and (3) for the period commencing with the fiscal year ended December 31, 2006 and ending on the last day of the Borrower’s most recently ended fiscal year prior to the making of such Restricted Payments, the ratio of (a) Consolidated EBITDA less the aggregate amount of Consolidated Capital Expenditures for such period (exclusive of the portion thereof financed with Debt permitted by Section 7.01 incurred during such period) less the aggregate amount of Consolidated Cash Taxes (including Permitted Tax Dividends) for such period to (b) Consolidated Fixed Charges for such period plus any Restricted Payments made pursuant to this Section 7.07(x) for such period shall not be less than 1.0 to 1.0;
(xi) so long as no Default or Event of Default is continuingthen in existence or would otherwise arise therefrom, the Consolidated Parties may make any Restricted Payments not otherwise permitted under this Section 7.07 so long as such payments constitute Permitted Investments under Section 7.06(xx);
(xii) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, prior to the Tranche B-2 Effective Date, the Consolidated Parties may repurchase with cash Senior Subordinated Notes in an aggregate amount not to exceed $25,000,000;
(xiii) on the Tranche B-2 Effective Date, in compliance with Section 4.02, the Borrower and the Co-Issuer shall be caused therebyuse the proceeds of the Tranche B-2 Term Loans to redeem, repurchase or retire the Senior Subordinated Notes;
(xiv) on any date that the Borrower incurs Debt pursuant to and in compliance with Section 7.01(xiv), the Borrower may use the proceeds of such Debt to redeem, repurchase or retire Discount Notes in an amount equivalent to such Debt proceeds; and
(xv) in addition to each of the Restricted Payments permitted above in this Section 7.07, so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the Borrower may (A) make cash dividends to ASG, and ASG may in turn make cash dividends to the Parent and/or ASC, and ASC may in turn make cash dividends to the Parent, and the Parent may in turn make cash dividends to Holdings; and Holdings may in turn make cash distributions to one or more of the Holdings Owners not otherwise permitted by this Section 7.07, each such dividend from Borrower to ASG, ASG to the Parent and/or ASC (and ASC to the Parent), and the Parent to Holdings and (B) make Restricted Payments (including with respect to Intermediate Holdco so the Discount Notes; provided that Intermediate Holdco may make payments, including Restricted Payments, to Parent) pursuant to the aggregate amount of cash dividends and in accordance with stock option plans or the other benefit plans for management or employees of the Borrower and its Subsidiaries as established in good faith by the Borrower’s board of directors and to otherwise pay for G&A Expenses and other costs and expenses of similar nature of Intermediate Holdco and Parent; provided, that such Restricted Payments made under subparts (A) and (B) shall not to exceed $2,000,000 in any Fiscal Year10,000,000.
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