Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, (ii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions. (b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Neff Corp), Second Lien Credit Agreement (Neff Corp)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that that:
(i) the Borrower and any Restricted Subsidiary Company may declare and pay dividends make Restricted Payments to the Borrower or make other distributions ratably to its equity holders, any wholly owned Subsidiary of the Borrower;
(ii) so long as no Default to the extent constituting Restricted Payments, any Company may take actions expressly permitted by Section 6.03 (other than Section 6.03(d)); and 01:18593508.118 2 NTD: To be included only if Docupace does not close prior to Closing Date. NAI-1500896929v12 - 42-
(iii) any Company may declare and make Restricted Payments:
(1) the proceeds of which will be used to repurchase, retire or Event otherwise acquire the Equity Interests of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders in an aggregate amount from directors, officers, employees or members of management consultants or independent contractors (or their estate, family trust, family members, spouse, civil partner and/or former spouse or civil partner) of any Company not to exceed the sum of $10,000,000 in any calendar year, (A) $2,000,000 during any fiscal year; provided that any unused amounts in not used during any fiscal calendar year shall be permitted to may be carried over to subsequent fiscal years; provided that and used in the amount expended in any fiscal year immediately following calendar year, but shall first be deemed to be from used last in such immediately following calendar year); provided further that the amount allocated to such fiscal year amounts set forth in this clause (without giving effect to any amounts carried over from prior fiscal years1) and then from the amount carried over to such fiscal year plus (B) may be further increased by the proceeds of any key man life insurance received during by the Loan Parties (solely with respect to the calendar year in which such fiscal year, proceeds are received and without limiting any carry over thereof permitted above); or
(iii2) so long as no Default or Event constituting repurchases of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the any parent holding company of Borrower deemed to occur upon the noncash exercise of stock optionsoptions and warrants or similar equity incentive awards;
(iv) the Borrower may make Restricted Payments solely in the form of Qualified Capital Stock;
(v) any Company may (i) pay cash in lieu of fractional shares in connection with any dividend, warrantssplit or combination of its Equity Interests or any Permitted Acquisition (or similar Investment) and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion;
(vi) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 6.05;
(vii) [reserved];
(viii) the Borrower may redeem in whole or in part any Equity Interests of the Borrower in exchange for another class of Equity Interests constituting Qualified Capital Stock or rights to acquire Equity Interests constituting Qualified Capital Stock or other convertible securities to the extent such Equity Interests represent a portion with proceeds from substantially concurrent equity contributions or issuances of the exercise or exchange price thereof and new shares of its Qualified Capital Stock;
(Bix) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu an amount equal to withholding or similar taxes payable or expected to be payable by any present or former employee, director, officer, manager, consultant or independent contractor (or their respective Affiliates, estates or immediate family members) and any repurchases of fractional Equity Interests in consideration of Holdingssuch payments including deemed repurchases in connection with the exercise of stock options or grant, Parent vesting or the Borrowerdelivery of any Equity Interests; provided that the aggregate amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower Restricted Payments (other than deemed repurchases made for no value) pursuant to this Section 6.05(a)(ix) shall not exceed $500,000 2,000,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as any fiscal year of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(aBorrower; and
(x) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would in an aggregate amount not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered exceeding, together with any Investments pursuant to Section 5.04(a6.03(p) or 5.04(band repayments of Junior Debt pursuant to Section 6.06(b)(iv); , the aggregate amount of net cash proceeds of issuance of Qualified Capital Stock actually received by the Borrower from and (vii) Holdings and Parent may make Permitted Tax Distributionsafter the Closing Date.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party or any Restricted Subsidiary Company to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary Company (other than the Borrower) to pay dividends or other distributions with respect to any of its Equity Interests or the ability of any Company to make or repay loans or advances to the Borrower or any other Restricted Subsidiary Company or to Guarantee Indebtedness of the Borrower or any other Restricted SubsidiaryCompany; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document or any Second Lien Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary Company pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary Company that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary Non-Loan Party by the terms of any Indebtedness of such Foreign Restricted Subsidiary Non-Loan Party permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause the foregoing shall not apply to customary restrictions on cash or other deposits or net worth required by customers under contracts entered into in the ordinary course of business and joint venture agreements or other similar arrangements if such provisions apply only to the Person (iand the equity interests in such Person) that is the subject thereof, (G) the foregoing shall not apply to provisions in agreements or instruments that prohibit the payment of dividends or the making of other distributions with respect to Equity Interests of a Person other than on a pro rata basis, (H) the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements agreement relating to a merger any Asset Sale (or other disposition of assets) permitted under this Agreement pending the Borrower permitted hereunder pursuant to Section 6.09(b)(iiconsummation of such Asset Sale (or other disposition of assets) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (HI) the foregoing shall not apply to restrictions and conditions any agreement in effect on at the Closing Date as shown on Schedule 3.10 (and any renewaltime a Person becomes a Company, extension or replacement therefor so long as such renewal, extension agreement was not entered into in connection with or replacement does in contemplation of such Person becoming a Company and which encumbrance or restriction is not expand applicable to the scope properties or assets of any applicable restriction Loan Party, other than the Company or condition)the property or assets of the Company so acquired.
Appears in 2 contracts
Samples: First Lien Term Loan Agreement, First Lien Term Loan Agreement
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, Make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that that:
(i) the Borrower and any each Restricted Subsidiary may declare make Restricted Payments to the Administrative Borrower, any other Restricted Subsidiary, or any other Person that owns a direct Equity Interest in such Restricted Subsidiary, ratably according to their respective holdings of the type, class or ranking of Equity Interest in respect of which such Restricted Payment is being made or in a manner more favorable to the Borrowers and pay dividends or make other distributions ratably to its equity holders, the Restricted Subsidiaries;
(ii) so long as the Administrative Borrower may make Restricted Payments from Available Cash to the extent that (x) no Default or Event of Default shall have has occurred and be is continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would immediately result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis (y) immediately before and after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, ParentPayment, the Administrative Borrower’s Interest Coverage Ratio is greater than or equal to 2.25:1.00;
(iii) the Administrative Borrower and any each Restricted Subsidiary may declare and make Restricted Payments from dividend payments or other distributions payable solely in preferred, common or subordinated Equity Interests of such Person(s) and the Available AmountAdministrative Borrower may issue common Equity Interests upon conversion of subordinated or preferred Equity Interests; provided that any such Equity Interests issued pursuant to this clause (iii) are not Disqualified Stock;
(iv) Restricted Payments may be made pursuant to clause (a)(i) in the form of the definition issuance of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as Equity Interests of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) Administrative Borrower in connection with the cashless exercise of options, warrants, conversion and other rights or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions tax withholding with respect to any the exercise of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness equity based awards under employee equity incentive compensation programs of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions Borrowers and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).Subsidiaries;
Appears in 2 contracts
Samples: Credit Agreement (Enviva Inc.), Credit Agreement (Enviva Inc.)
Restricted Payments; Restrictive Agreements. (a) Declare or makeMake, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that that
(i) the Borrower and any Restricted Subsidiary (other than the Borrower) may declare and pay dividends or make other distributions ratably to its equity holders, ,
(ii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may make distributions to Holdings so that Holdings may repurchase its Equity Interests owned by its employees of Holdings, the Borrower or the other Subsidiaries or make payments to employees of Holdings, the Borrower or the other Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed $1,500,000 in any such fiscal year of the sum of (A) $2,000,000 during any fiscal year; provided that any unused Borrower, such amounts not used in any fiscal year shall be permitted to may be carried over forward to the subsequent fiscal yearsyear,
(iii) the Borrower may make Restricted Payments to Holdings in the amount necessary to allow Holdings to make payments permitted by Sections 6.07(g), (h) and (i),
(iv) Restricted Payments constituting IPO Reorganization Transactions,
(v) the Borrower may make Restricted Payments to Holdings in an amount equal to the Available Amount; provided that that, with respect to Restricted Payments made using the amount expended in any fiscal year Cumulative Retained Excess Cash Flow Amount, (1) no Event of Default shall first have occurred and be deemed to be from the amount allocated to such fiscal year continuing or would result therefrom and (without 2) on a pro forma basis after giving effect to such Restricted Payment and any amounts carried over from prior fiscal yearspro forma adjustments described in Section 1.03, the Total Leverage Ratio is equal to or less than 2.70 to 1.00,
(vi) the Borrower and its Restricted Subsidiaries may make dividends and other distributions in order to consummate the Transactions,
(vii) the Borrower and its Restricted Subsidiaries may make Restricted Payments to the extent necessary to permit Holdings or any Parent Company to pay (1) general administrative costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other benefits payable to directors, officers, employees, members of management, managers or consultants of any Parent Company) and then from franchise fees and Taxes and similar fees, Taxes and expenses required to maintain the amount carried over to organizational existence of such fiscal year plus Parent Company, in each case, which are reasonable and customary and incurred in the ordinary course of business, (B2) the proceeds any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any key man life insurance received during Parent Company, in each case, to the extent attributable to the ownership or operations of the Borrower, any Parent Company (but excluding, for the avoidance of doubt, the portion of any such fiscal yearamount, if any, that is attributable to the ownership or operations of any Subsidiary of Holdings or any Parent Company other than the Borrower or its Restricted Subsidiaries), or the other Restricted Subsidiaries, (iii3) fees and expenses related to debt or equity offerings, investments or acquisitions (whether or not consummated) and (4) after the consummation of a Qualified Public Offering, Public Company Costs, in each case attributable to the investment in the Borrower and the other Restricted Subsidiaries (and Unrestricted Subsidiaries, to the extent of cash received from such Unrestricted Subsidiaries for payment thereof by the Borrower),
(viii) after the consummation of a Qualified Public Offering, the Borrower may make Restricted Payments, so that the Borrower (or its Parent Company) may pay dividends, in an aggregate amount per annum not to exceed the greater of (x) 6.0% of the net proceeds received by the Borrower in such Qualified Public Offering and (y) 5.0% of the Borrower’s (or its Parent Company’s) market capitalization, so long as no Event of Default or has occurred and is continuing,
(ix) other such Restricted Payments, not to exceed in the aggregate the greater of (x) $15,000,000 and (y) 16.5% of Consolidated EBITDA for the most recently ended Test Period, provided that no Event of Default shall have occurred and be continuing or would result therefrom, and
(Ax) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent its Restricted Subsidiaries may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as (1) no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 (2) on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as pro forma adjustments described in Section 1.03, the Total Leverage Ratio would not exceed 5.50 is equal to 1.00 on a pro forma basis after giving effect or less than 1.75 to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions1.00.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any other Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations, or (ii) the ability of any the Borrower or other Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, ; provided further that such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (ED) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment or financing thereof, (FE) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained set forth in contractual obligations governing any agreement evidencing Indebtedness of a Restricted Subsidiary that is not a Loan Party permitted pursuant to by Section 6.01(b)6.01, (f)F) the foregoing shall not apply to restrictions that are assumed in connection with any acquisition of property or the Equity Interests of any person, so long as the relevant encumbrance or restriction relates solely to the person and its subsidiaries (g), (h), (lincluding the Equity Interests of the relevant person) or (s)property so acquired and was not created in connection with or in anticipation of such acquisition, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to restrictions that are imposed by customary restrictions provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and conditions contained other similar agreements, in agreements relating each case, with respect to any Restricted Subsidiary that is not a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such mergerWholly-Owned Subsidiary, provided that such limitations shall not prohibit or restrict the Loan Parties’ ability to grant liens on pledge or transfer of ownership interests in the Collateral pursuant to the Security Documentsrelevant Restricted Subsidiary, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred after the Closing Date if the relevant restrictions, taken as a whole, are not materially less favorable to the Lenders than the restrictions contained in this Agreement, taken as a whole (as determined in good faith by the Borrower), and conditions (I) the foregoing shall not apply to restrictions set forth in effect documents which exist on the Closing Date as shown on Schedule 3.10 and were not created in contemplation thereof (and any amendment, modification, restatement, renewal, extension supplement, refunding, replacement or replacement therefor refinancing of any such document so long as such amendment, modification, restatement, renewal, extension supplement, refunding, replacement or refinancing is, in the good faith judgment of the Borrower, no more restrictive, taken as a whole, than those in existence prior to such amendment, modification, restatement, renewal, supplement, refunding, replacement does not expand the scope of any applicable restriction or conditionrefinancing).
Appears in 2 contracts
Samples: Credit Agreement (AssetMark Financial Holdings, Inc.), Credit Agreement (AssetMark Financial Holdings, Inc.)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsthe Borrower may, Parent or the Borrower may make distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by its employees of Holdings, the Borrower or the Subsidiaries or make payments to employees of Holdings, the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed $2,000,000 in any fiscal year (provided, however, that such amount shall be increased by the amount of cash proceeds received by Holdings from the sale of Equity Interests of Holdings to such employees after the Closing Date to the extent such proceeds are contributed directly or indirectly to the Borrower as common equity), (iii) Holdings may, and the Borrower may make distributions to Holdings so that Holdings may, acquire the Offer to Purchase Shares pursuant to the Self Tender, (iv) the Borrower may make Restricted Payments to Holdings (x) in an amount not to exceed $250,000 in any fiscal year, to the extent necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay the Tax liabilities of Holdings directly attributable to (or arising as a result of) the operations of the Borrower and the Subsidiaries; provided, however, that (A) the amount of such dividends shall not exceed the amount that the Borrower and the Subsidiaries would be required to pay in respect of Federal, State and local taxes were the Borrower and the Subsidiaries to pay such taxes as stand-alone taxpayers and (B) all Restricted Payments made to Holdings pursuant to this clause (iv) are used by Holdings for the purposes specified herein within 20 days of the receipt thereof and (v) so long as no Event of Default or Default shall have occurred and be continuing or result therefrom, Holdings and the Borrower may make other Restricted Payments under this clause (v) in an amount not to exceed the sum of (Aa) $2,000,000 during any fiscal year; provided that any unused amounts 20,000,000 and (b) 50% of Cumulative Consolidated Net Income (or, in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from case Cumulative Consolidated Net Income at the amount allocated to time of determination is a deficit, minus 100% of such fiscal year deficit), less (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (Bc) the proceeds aggregate amount of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make all Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or made since the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; Closing Date pursuant to this clause (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to, or to transfer any of its property or assets to, the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 6.04 and applicable solely to such joint venture entered into in the ordinary course of business, (D) the foregoing shall not apply to customary restrictions and conditions imposed on contained in any Foreign Restricted Subsidiary by agreement relating to an Asset Sale permitted under Section 6.05 pending the terms of any Indebtedness consummation of such Foreign Restricted Subsidiary permitted Asset Sale to be incurred hereunderthe extent such restrictions and conditions apply only to the assets subject to such Asset Sale, (DE) the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to Indebtedness permitted under Section 6.01(l) so long as such restrictions or conditions are no more restrictive than those contained in this Agreement, (F) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, Indebtedness and (EG) clause (i) of the foregoing shall not apply to customary provisions in leases leases, licenses and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 2 contracts
Samples: Credit Agreement (CCC Information Services Group Inc), Credit Agreement (CCC Information Services Group Inc)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsthe Borrower may, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders make distributions to Holdings so that Holdings may (x) make Restricted Payments in an aggregate amount after the Closing Date not to exceed $15,000,000, (y) if at the end of any fiscal year, commencing with the fiscal year ending on or around June 30, 2007, the Senior Secured Leverage Ratio was less than 2.25 to 1.0, make Restricted Payments during the following fiscal year in an aggregate amount not to exceed 50% of Excess Cash Flow for the sum fiscal year then ended so long as, after giving effect to any such Restricted Payment, the Senior Secured Leverage Ratio would be less than 2.25 to 1.0 and (z) repurchase its Equity Interests owned by employees of (A) Holdings, the Borrower or the Subsidiaries or make payments to employees of Holdings, the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed $2,000,000 during 8,000,000 in any fiscal year, plus the amount of cash received by the Borrower during such fiscal year from insurance proceeds paid in respect of the death or disability of any employee or director of Holdings, the Borrower or any Subsidiary, (iii) the Borrower may make Restricted Payments or make loans and advances to Holdings (x) in an amount not to exceed $1,500,000 in any fiscal year, to the extent necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business; provided that any unused amounts in any fiscal year shall be permitted to such amount not so utilized may be carried over forward to subsequent the next fiscal yearsyear, and (y) in an amount necessary to make Tax Payments directly attributable to (or arising as a result of) the operations of the Borrower and the Subsidiaries; provided provided, however, that (A) the amount of such dividends shall not exceed the amount that the amount expended Borrower and the Subsidiaries would be required to pay in any fiscal year shall first be deemed respect of Federal, State and local taxes were the Borrower to be from the amount allocated to pay such fiscal year (without giving effect to any amounts carried over from prior fiscal years) taxes as a stand-alone taxpayer and then from the amount carried over to such fiscal year plus (B) all Restricted Payments made to Holdings pursuant to this clause (iii) are used by Holdings for the proceeds purposes specified herein within 30 days of any key man life insurance received during such fiscal yearthe receipt thereof, (iiiiv) so long as no Default or Event of Default shall have occurred and be continuing or would result therefromcontinuing, (A) Parent the Borrower may make a Restricted Payment payments to Holdings in an aggregate amount not to allow Holdings toexceed $5,000,000 in any calendar year (with unused amounts in any calendar year being carried over to the next succeeding calendar year subject to a maximum of $10,000,000 in any calendar year) to be used solely to redeem, and Holdings may, purchase, redeem purchase or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution outstanding on the Closing Date, to acquire capital stock of Holdings; (vi) so long as no Default or Event of Default provided, however, that such payments shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant prior to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); September 29, 2008 and (viiv) Holdings the Loan Parties may provide reasonable compensation, customary employee benefit arrangements and Parent may make Permitted Tax Distributionsindemnities for their respective directors.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations or any refinancing thereof, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness Indebtedness, Capital Lease Obligations, Synthetic Lease Obligations or obligations in respect of the Sale/Leaseback Transaction, in each case permitted by this Agreement Agreement, if such restrictions or conditions apply only to the property or assets securing such Indebtedness, Indebtedness or subject to such lease and (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 2 contracts
Samples: Credit Agreement (Ryan's Restaurant Leasing Company, LLC), Amendment Agreement (Buffets Holdings, Inc.)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) after the Borrower and any Restricted Subsidiary Exit Facility Conversion Date, Holdings may declare and repurchase, or may pay cash dividends or make other distributions ratably with respect to its equity holdersEquity Interests so that one or more of its parent holding companies (if any) may repurchase, (ii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its own Equity Interests owned by its present or former officers or employees of Holdings or the Restricted Subsidiaries or make payments to present or former officers or employees of Holdings or the Restricted Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in an connection with the death or disability, retirement or termination of employment of such present or former officers or employees; provided, that the aggregate amount of such Restricted Payments under this clause (i) shall not to exceed the sum of (A) in any calendar year $2,000,000 during any fiscal year2,000,000; provided that any unused amounts amount in any fiscal calendar year shall be permitted to may be carried over to subsequent fiscal years; provided that forward into any succeeding calendar year (plus the amount expended in any fiscal of net proceeds received by Holdings during such calendar year shall first be deemed to be from Employee Equity Sales and the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the of net proceeds of any key key-man life insurance received during such fiscal calendar year); and provided further, that the aggregate amount of such purchases or redemptions that may be made pursuant to this clause (iiii) so long as no Default or Event shall not exceed $10,000,000 (plus the amount of Default net proceeds received by Holdings after the date of this Agreement from Employee Equity Sales); (ii) this Section 6.06(a) shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment not apply to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value repurchases of Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests options or other convertible securities to the extent warrants if such Equity Interests represent a portion of the exercise price of such options or exchange price thereof warrants; (iii) any Restricted Subsidiary of Holdings may declare and (B) Parent may make a Restricted Payment Payments to, repurchase its Equity Interests from or make other distributions to Holdings or to allow any wholly owned Restricted Subsidiary of Holdings to(or, in the case of non-wholly owned Restricted Subsidiaries, to Holdings or any Restricted Subsidiary that is a direct or indirect parent of such Restricted Subsidiary and Holdings may, purchase, redeem or otherwise acquire or retire for value to each other owner of Equity Interests of Holdings, Parent such Restricted Subsidiary on a pro rata basis (or more favorable basis from the Borrower made in lieu perspective of withholding taxes in connection with any exercise Holdings or exchange of stock options, warrants or other similar rightssuch Restricted Subsidiary) based on their relative ownership interests; and (iv) Parent may make a Restricted Payment to Holdings to allow Holdings toafter the Exit Facility Conversion Date, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdingsmay be made at any time when, Parent or the Borrower; provided that the amount of cash paid by Holdingson a pro forma basis after giving effect thereto, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (vx) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom continuing, (y) the Borrowers shall be in pro forma compliance with the Financial Covenants and (z) the Total Leverage Ratio would not exceed 4.75 to 1.00 Liquidity of Holdings and its Restricted Subsidiaries on a pro forma consolidated basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may shall be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributionsat least $250,000,000.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower Holdings or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower Holdings or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by law, any Loan Document, agreement governing any Indebtedness permitted under Section 6.01(a) or (g) or to the extent such restrictions and conditions do not contravene the Loan Documents, under Section 6.01(m), (n) (with respect to Restricted Subsidiaries that are not Loan Parties), (o) or (p) or a Refinancing Facility or Refinancing Notes permitted under Section 6.01(t), (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of, or sale of the assets of a Restricted Subsidiary pending such sale, ; provided such restrictions and conditions apply only to the Restricted Subsidiary that is is, or such assets that are, to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (ED) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (FE) clause (i) of the foregoing shall not apply to customary restrictions or conditions imposed by the Revolving Credit Agreement and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the other “Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger” defined therein, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (HF) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition)Not for Profit Subsidiary.
Appears in 2 contracts
Samples: Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.), Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.)
Restricted Payments; Restrictive Agreements. (aA) Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary of the Borrowers may declare and pay dividends or make other distributions ratably to its equity holdersholders (so long as, to the extent such Restricted Subsidiary is not a wholly owned Subsidiary, such dividends or distributions are made on a pro rata basis), (ii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsthe Borrowers or any Restricted Subsidiary may make distributions to Holdings so that Holdings may, Parent or the Borrower may repurchase its Equity Interests owned by its current or former directors, officers, employees or consultants of Holdings, the Borrowers or the Restricted Subsidiaries or any estate, family member of, or trust or other entity for the benefit of, any of the foregoing persons upon termination of employment, in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans, in connection with the exercise of rights by Holdings or any Restricted Subsidiary under any agreement with any such current or former directors, officers, employees or consultants or in connection with the death or disability of such current or former directors, officers, employees or consultants, in an aggregate amount for all such repurchases not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 1,000,000 in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that but not more than $5,000,000 in the amount expended in any fiscal year shall first be deemed to be from aggregate plus the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the cash proceeds of any key man life insurance policies received during such fiscal yearby the Borrowers after the Third Restatement Date less any amounts previously applied to the payment of Restricted Payments pursuant to this clause (a)(ii), (iii) so long as no Default Holdings, the Borrowers and each Restricted Subsidiary may declare and pay dividends payable solely in shares of common stock or Event other Qualified Capital Stock of Default shall have occurred and be continuing Holdings, the Borrowers or would result therefromsuch Restricted Subsidiary, (Aiv) Parent the Borrowers or any Restricted Subsidiary may make a Restricted Payment distributions to Holdings to allow so that Holdings to, and Holdings may, may purchase, redeem or otherwise repurchase, defease, acquire or retire for value Equity Interests the capital stock of HoldingsHoldings or options, Parent warrants or other rights to acquire such capital stock solely in exchange for, or out of the Borrower proceeds of the sale of (so long as such purchase, repurchase, redemption, defeasance, acquisition or retirement is consummated within 60 days of such sale) Qualified Capital Stock of Holdings or options, warrants or other rights to acquire such Qualified Capital Stock, (v) the Borrowers and each Restricted Subsidiary may purchase, repurchase, defease or retire for value the capital stock of Holdings or options, warrants or other rights to acquire such capital stock deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; rights to acquire such capital stock solely to the extent that shares or options, warrants or other rights to acquire such capital stock represent all or any portion of the exercise price of such options, warrants or other rights to acquire such capital stock, (ivvi) Parent may make a Restricted Payment the making of cash payments (or distributions to Holdings to allow permit such payments by Holdings) in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for equity interests of Holdings toshall be permitted, and Holdings may, (vii) the Borrowers or any Restricted Subsidiary may make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrowerto Holdings (v) to finance any Investment permitted to be made pursuant to Section 6.04; provided that (A) such Restricted Payment shall be made substantially concurrently with the amount closing of cash paid by Holdingssuch Investment and (B) such persons shall, Parent promptly following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Borrowers or a Restricted Subsidiary or (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in lieu of fractional Equity Interests Section 6.05) of the Borrower shall not exceed $500,000 person formed or acquired into the Borrowers or a Restricted Subsidiary in order to consummate such Investment, in each case, in accordance with the aggregaterequirements of Section 5.12 and Section 6.04; (vw) Parent the proceeds of which shall be used by Holdings to pay costs, fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (x) to the extent necessary to pay general corporate and overhead expenses incurred by Holdings (including legal, accounting and filing costs), (y) to the extent necessary to pay fees and expenses and (z) in an amount necessary to pay the Tax liabilities of Holdings directly attributable to (or arising as a result of) the operations or income of the Borrowers and the Restricted Subsidiaries; (viii) the Borrowers and the Restricted Subsidiaries may make a additional Restricted payment Payments, in an amount not to Holdings exceed the Available Basket Amount immediately prior to allow Holdings tothe time such Restricted Payment is paid, and Holdings may, make the 2014 Distribution on the Closing Dateshall be permitted; provided that (vix) so long as no Default or Event of Default shall have has occurred and be is continuing at the time of any such Restricted Payment or would result therefrom and (y) the Total Net Leverage Ratio would not exceed 4.75 to 1.00 calculated on a pro forma basis after giving effect to such Restricted Payment tested Pro Forma Basis as of the last day of the most recently ended fiscal quarter Test Period for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b(b), as applicable, prior to the date of the execution of the definitive agreement governing such Restricted Payment shall not exceed 2.50 to 1.00; provided, further, that during the Waiver Period or any Specified Equity Cure Period the Borrowers and the Restricted Subsidiaries shall not be permitted to make any Restricted Payments pursuant to this clause (viii); (ix) [reserved]; (x) [reserved]; (xi) the Borrowers and the Restricted Subsidiaries may make any Restricted Payment within 60 days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 6.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; (xii) the Borrowers and the Restricted Subsidiaries may make additional Restricted Payments with any cash received by Holdings, Parentwhich is contributed as common equity to the U.S. Borrower, as the exercise price in connection with an exercise of warrants or options with respect to Equity Interests of Holdings by the holders of such warrants or options; (xiii) to the extent constituting Restricted Payments, the Borrowers and the Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.07; (xiv) payments made or expected to be made by the Borrowers or any Restricted Subsidiary (or distributions to Holdings to permit such payments by Holdings) in respect of withholding, employment or similar taxes payable by any current or former directors, officers, employees or consultants and any repurchases of Equity Interests deemed to occur upon exercise, vesting or settlement of, or payment with respect to, any equity or equity-based award, including, without limitation, stock or other equity options, stock or other equity appreciation rights, warrants, restricted equity units, restricted equity, deferred equity units or similar rights if such Equity Interests are used by the holder of such award to pay a portion of the exercise price of such options, appreciation rights, warrants or similar rights or to satisfy any required withholding or similar taxes with respect to any such award, (xv) the Borrower and or any Restricted Subsidiary may make Restricted Payments from to Holdings, the Available Amount; provided that proceeds of which shall be used by Holdings to make any payment or delivery (1) pursuant to the terms of any Permitted Convertible Notes (including, without limitation, upon conversion, redemption, required repurchase, an interest payment date or maturity) or (2) pursuant to the terms of any Permitted Convertible Note Hedging Agreement or in connection with the early termination, unwind or settlement thereto and (xvi) in addition to Restricted Payments may be made pursuant to clause permitted by paragraphs (a)(ii) of through (xv) above, additional Restricted Payments by the definition of Available Amount Borrowers and the Restricted Subsidiaries so long as the Total Leverage Ratio would aggregate amount of such Restricted Payments pursuant to this paragraph (xvi) does not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions$2,500,000.
(ba) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Borrowers or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations, or (ii) the ability of any Restricted Subsidiary of the Borrowers that is not a Loan Party to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower Borrowers or any other Restricted Subsidiary Loan Party or to Guarantee Indebtedness of the Borrower Borrowers or any other Restricted SubsidiaryLoan Party; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law any Requirement of Law or by any Loan DocumentDocument or documentation relating to Incremental Equivalent Debt, the Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt or Permitted Unsecured Refinancing Debt, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary or assets pending such sale, ; provided that such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder[reserved], (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting subleasing or the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant any agreement relating to the Security Documentssale of any property permitted under this Agreement pending the consummation of such sale, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and or conditions contained in agreements arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred by Section 6.01 if such restrictions or conditions taken as a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant whole are no more onerous to the Security DocumentsBorrowers or the Restricted Subsidiaries than the terms of this Agreement, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to any agreement or instrument governing Indebtedness assumed in connection with the acquisition of assets by the Borrowers or any Restricted Subsidiary permitted hereunder or secured by a Lien encumbering assets acquired in connection therewith, which encumbrance or restriction is not applicable to any person, or the properties of any person, other than the person or the properties or assets of the person so acquired as long as such agreement or instrument was not entered into in contemplation of the acquisition of such assets, the foregoing shall not apply to any restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business, (J) the foregoing shall not apply to any provisions in joint venture agreements (relating solely to the respective joint venture) entered into in the ordinary course of business, (K) the foregoing shall not apply to customary non-assignment provisions in leases, contracts, licenses and conditions other agreements, (L) the foregoing shall not apply to any agreement in effect on at the Closing Date as shown on Schedule 3.10 (and any renewaltime a person becomes a Restricted Subsidiary of the Borrowers, extension or replacement therefor so long as such renewalagreement was not entered into in connection with or in contemplation of such person becoming a Restricted Subsidiary of the Borrowers, extension which encumbrance or replacement does restriction is not expand applicable to the scope properties or assets of any applicable Loan Party, other than the Restricted Subsidiary, or the property or assets of the Restricted Subsidiary, so acquired, (M) the foregoing shall not apply to customary restrictions that arise in connection with any Lien permitted by Section 6.02 or any document in connection therewith provided that such restriction relates only to the property subject to such Lien (and any proceeds and products thereof) and (N) the foregoing shall not apply to restrictions or condition)conditions arising pursuant to an agreement, instrument or guarantee provided in connection with any Vessel Financing.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur Payment (including pursuant to any obligation (contingent or otherwise) to do soSynthetic Purchase Agreement); provided, however, that that
(i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, ;
(ii) [reserved];
(iii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsand subject to compliance with the RP Leverage Condition, Parent or the Borrower may repurchase its (or send up a distribution to allow a parent company to repurchase its) respective Equity Interests owned by its current or former employees, directors or consultants of Holdings, the Borrower or the Subsidiaries (or any parent company) or make payments to employees, directors or consultants of Holdings, the Borrower or the Subsidiaries (or any parent company) in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans, in an aggregate amount not to exceed the sum of (A) $2,000,000 during 10,000,000 in any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year ;
(without giving effect to any amounts carried over from prior fiscal yearsiv) and then from the amount carried over to such fiscal year plus [reserved];
(Bv) [reserved];
(vi) the proceeds of any key man life insurance received during such fiscal yearBorrower may net shares under employee benefits plans to settle option price payments owed by employees and directors with respect thereto and to settle employees’ and directors’ Federal, state and income tax liabilities (iiiif any) related thereto;
(vii) so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the Total time of and after giving effect thereto, the Secured Net Leverage Ratio would not exceed 4.75 to 1.00 for the most recent Test Period on a pro forma basis shall not be greater than 4.25 to 1.00, the Borrower may make other Restricted Payments in an amount not to exceed the Available Amount at the time such Restricted Payment is made;
(viii) payments, dividends or distributions to finance payments permitted by Section 6.07(vi);
(ix) so long as (A) no Event of Default or Default shall have occurred and be continuing, or would result therefrom and (B) at the time of and after giving effect to such Restricted Payment tested as of thereto, the Secured Net Leverage Ratio for the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 recent Test Period on a pro forma basis shall not be greater than 3.00 to 1.00, the Borrower may make other Restricted Payments;
(x) the Borrower or any Subsidiary may make a payment of any dividend or distribution within 60 days after giving effect the date of declaration thereof, if at the date of declaration such payment would have complied with the RP Leverage Condition and all other provisions of this Agreement;
(xi) subject to compliance with the RP Leverage Condition, the Borrower or any Subsidiary may make a purchase, repurchase, redemption, defeasance or other acquisition or retirement of preferred Equity Interests made by exchange (including any such Restricted Payment tested as exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the most recently ended fiscal quarter for which financial statements have been delivered pursuant issuance of fractional shares) for, or out of the proceeds of the substantially concurrent (and in any event, within 60 days) sale of, preferred Equity Interests of Holdings or the Borrower (other than Disqualified Stock and other than preferred Equity Interests sold to Section 5.04(aa Subsidiary) or 5.04(b); a substantially concurrent (and in any event, within 60 days) contribution to the equity (viiother than through the issuance of Disqualified Stock or by preferred Equity Interests sold to any Subsidiary) of Holdings and Parent or the Borrower;
(xii) the Borrower may make Permitted Tax Distributionspayments to holders of Equity Interests of Holdings (or any parent company) or the Borrower in lieu of the issuance of fractional shares of such Equity Interests, provided, however, that any such payment shall not be for the purpose of evading any limitation of this covenant or otherwise to facilitate any dividend or other return of capital to the holders of such Equity Interests (as determined in good faith by the board of directors of the Borrower);
(xiii) the Borrower or any Subsidiary may make purchases, repurchases, redemptions, defeasances or other acquisitions or retirements of Equity Interests deemed to occur upon the exercise of stock options, warrants or other rights in respect thereof if such Equity Interests represent a portion of the exercise price thereof; and
(xiv) payments, dividends or distributions to the extent that such payment, dividend or distribution is made with issuances of or the cash proceeds from the issuance of Equity Interests after the Closing Date of Holdings or any parent thereof and to the extent such proceeds are not included in the calculation of the Available Amount.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Borrower or any Restricted Subsidiary (other than any Permitted Joint Venture Subsidiary) to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations, or (ii) the ability of any Restricted Subsidiary (other than any Permitted Joint Venture Subsidiary) to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary Guarantor or to Guarantee Indebtedness of the Borrower or any other Restricted SubsidiarySubsidiary Guarantor; provided (x) that (A) the foregoing shall not apply to restrictions and conditions (A) imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary or other assets pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary or assets that is are to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) imposed pursuant to other Indebtedness incurred pursuant to Section 6.01 with such encumbrances and restrictions that, taken as a whole, are not more restrictive than the terms hereof, (E) contained in any agreement relating to a Permitted Receivables Transaction if such restrictions or encumbrances apply only to the relevant Permitted Receivables Transaction and are required pursuant to the terms and conditions of such Permitted Receivables Transaction, (F) on Permitted Joint Ventures or other joint ventures permitted under Section 6.04 and Permitted Syndication Subsidiaries imposed by the terms of the agreements governing the same, (G) applicable to an Acquired Entity at the time such Acquired Entity became a Subsidiary, so long as such restriction or encumbrance was not created in contemplation of or in connection with such Acquired Entity becoming a Subsidiary and apply only to such Acquired Entity and (H) contained in the ABL Facility Credit Agreement or the other ABL Facility Loan Documents; provided that such restrictions and conditions are no more onerous than those set forth in the ABL Facility Loan Documents in effect on the Closing Date; and (y) clause (i) of the foregoing shall not apply to restrictions or conditions (A) that are customary provisions in leases and other contracts restricting the assignment thereof and any right of first refusal and (B) imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holdersholders (so long as, to the extent such Subsidiary is not a wholly owned Subsidiary, such dividends or distributions are made on a pro rata basis), (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may (w) repurchase its Equity Interests owned by, or make payments to, employees, officers or directors (or former employees, officers or directors) of the Borrower or the Subsidiaries or any family member of, or trust or other entity for the benefit of, any of the foregoing persons (A) if such repurchases or payments are contemplated by the Shareholders Agreement or (B) upon termination of their employment, in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees, (x) otherwise make Restricted Payments in connection with the purchase or repurchase by the Borrower or the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives, (y) repurchase up to $5,000,000 of its equity holders Qualified Capital Stock in any fiscal year pursuant to publicly announced open market repurchase transactions, in the case of clauses (w), (x) and (y) in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 10,000,000 in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that (it being agreed that, if the amount expended in Net Leverage Ratio as at the end of any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings is less than 2.25 to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Samples: Credit Agreement (Deltek, Inc)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions distributions, including in the form of additional Equity Interests, ratably to its equity holders, (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may, or may pay dividends or make other distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by its employees of Holdings, the Borrower or the Subsidiaries or make payments to employees of Holdings, the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees or make customary and reasonable salary and bonus and other benefits payments to officers, employees and consultants of Holdings or payments of customary fees and expenses of members of the board of directors of Holdings in an aggregate amount for this clause (ii) not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 1,500,000 in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided (it being agreed that the any such amount expended not utilized in any fiscal year shall first may be deemed to be from the amount allocated to such carried forward and utilized in any subsequent fiscal year so long as the aggregate amount of such repurchases or payments pursuant to this clause (without giving effect to ii) shall not exceed $3,000,000 in any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year), (iii) the Borrower may make Restricted Payments to Holdings (x) in an amount not to exceed, when taken together with the aggregate amount of all loans or advances made pursuant to Section 6.04(i) for such purpose, $1,000,000 in any fiscal year to the extent necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay the Tax liabilities of Holdings directly attributable to (or arising as a result of) the operations of the Borrower and the Subsidiaries pursuant to the Tax Sharing Agreement, as such agreement exists on the Closing Date and with such changes after the Closing Date as may be approved by the Administrative Agent; provided that all Restricted Payments made to Holdings pursuant to clause (iii) shall be used by Holdings for the purpose specified herein within 20 days of the receipt thereof, (iv) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent the Borrower may pay dividends or make a Restricted Payment other distributions to Holdings to allow so that Holdings tomay pay those fees, costs and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests expenses that are expressly permitted by clause (c) of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof Section 6.07 and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom therefrom, the Borrower may make Restricted Payments to Holdings, and Holdings may, in turn, make such Restricted Payments to its equity holders so long as (A) the Borrower would be in compliance with the covenants set forth in Sections 6.11 and 6.13 and the Total Leverage Ratio would not exceed 4.75 be 3.25 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested or less, in each case, as of the most recently ended fiscal quarter completed period ending prior to such transaction for which the financial statements have been delivered pursuant to and certificates required by Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may ) were required to be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter delivered or for which comparable financial statements have been delivered pursuant filed with or furnished to Section 5.04(a) or 5.04(b); the Securities and Exchange Commission, after giving pro forma effect to such transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such transaction had occurred as of the first day of such period and (viiB) Holdings at the time of, after giving effect to, such transaction, there shall be at least $7,500,000 of unused and Parent may make Permitted Tax Distributionsavailable Revolving Credit Commitments.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary or its assets pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary or its assets that is are to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary that is not a Loan Party by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions restrictions or conditions imposed by the Subordinated Note Documents as in leases effect on the Closing Date and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions provisions in leases and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict other contracts restricting the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition)assignment thereof.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, (ii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its future, present or former officers, directors, employees or consultants of the Borrower or the Subsidiaries or make payments to officers, directors, employees or consultants of the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity-based incentives pursuant to management incentive plans or other similar agreements or in connection with the death or disability of such employees in an aggregate amount not to exceed $10,000,000 (increasing on and after the sum of (AAcquisition Closing Date to $12,000,000) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom[Reserved], (Aiv) Parent the Borrower may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests cash payments in lieu of Holdings, Parent or the Borrower deemed to occur upon issuance of fractional shares in connection with the exercise of stock options, warrants, rights to acquire Equity Interests options or other securities convertible securities to the extent such Equity Interests represent a portion of the exercise into or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire exchangeable for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; Borrower, (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom (determined in the case of any dividend payable by the Borrower to the holders of its common Equity Interests generally, at the time of declaration thereof, so long as such dividends are paid within 60 days of such declaration), the Borrower may make additional Restricted Payments (A) in an aggregate amount not to exceed (x) from the Closing Date to the Acquisition Closing Date $15,000,000 , from and after the Total Second Amendment Date, $25,000,000 (less the amount of payments made pursuant to Section 6.09(b)(ii)(A)(x) prior to the Acquisition Closing Date) and (y) from and after the Acquisition Closing Date, $18,000,000 (less the amount of payments made pursuant to Section 6.09(b)(ii)(A)(y) on or after the Acquisition Closing on or after the Second Amendment Date), (B) with amounts available under the Available Builder Basket at such time; provided that, with respect to this clause (B), the Leverage Ratio would not exceed 4.75 to 1.00 not, on a pro forma basis after giving effect to such Restricted Payment tested and the financing therefor, exceed 2.502.75:1.00 as of the end of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); completed Test Period and (viiC) Holdings with the then-available Available Equity Proceeds and Parent may make Permitted Tax Distributions.
(bvi) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or its Subsidiaries make any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is payments required to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations made under the Loan Documents; (G) Merger Agreement or the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition)Hotspot Purchase Agreement.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holdersholders of a given class, (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its employees of the Borrower or the Subsidiaries or make payments to employees of the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 10,000,000 in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) the Borrower may declare and pay a dividend of all of the issued and outstanding shares of common stock of Civeo to effect the Spin-Off and (iv) so long as (A) no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, (AB) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion at least $25,000,000 of the exercise or exchange price thereof Total Commitment is unused and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis available after giving effect to such Restricted Payment tested Payment, and (C) the Borrower would be in compliance with the covenants set forth in Sections 6.10 and 6.11 as of the most recently ended completed period of four consecutive fiscal quarter quarters ending prior to such transaction for which the financial statements have been delivered pursuant to required by Section 5.04(a) or 5.04(b) have been delivered or for which comparable financial statements have been filed with the SEC, after giving pro forma effect (using the criteria therefor described in Section 6.04(i), Holdings, Parent) to such transaction and to any other event occurring during or after such period as to which pro forma recalculation is appropriate as if such transaction had occurred as of the first day of such period, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributionsin any amount.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets in favor of the Administrative Agent or any successor thereto hereunder or under any agreement that replaces or refinances this Agreement, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, and (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, (ii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its future, present or former officers, directors, employees or consultants of the Borrower or the Subsidiaries or make payments to officers, directors, employees or consultants of the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity-based incentives pursuant to management incentive plans or other similar agreements or in connection with the death or disability of such employees in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 10,000,000 in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event the Borrower may effect the Special Distribution with the proceeds of Default shall have occurred and be continuing or would result therefromthe Term Loans made hereunder, (Aiv) Parent the Borrower may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests cash payments in lieu of Holdings, Parent or the Borrower deemed to occur upon issuance of fractional shares in connection with the exercise of stock options, warrants, rights to acquire Equity Interests options or other securities convertible securities to the extent such Equity Interests represent a portion of the exercise into or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire exchangeable for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; and (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and (determined in the Total case of any dividend payable by the Borrower to the holders of its common Equity Interests generally, at the time of declaration thereof, so long as such dividends are paid within 60 days of such declaration), the Borrower may make additional Restricted Payments (A) in an aggregate amount not to exceed $15,000,000 (less the amount of payments made pursuant to Section 6.09(b)(ii)(A)), (B) with amounts available under the Available Builder Basket at such time; provided that, with respect to this clause (B), the Leverage Ratio would not exceed 4.75 to 1.00 not, on a pro forma basis after giving effect to such Restricted Payment tested and the financing therefor, exceed 2.50:1.00 as of the end of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); completed Test Period and (viiC) Holdings and Parent may make Permitted Tax Distributionswith the then-available Available Equity Proceeds.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or regulation or by any Loan Document, or, in the case of Registered Securities Exchange Subsidiaries, required by the regulator thereof, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, Indebtedness and (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) after the Borrower and any Restricted Subsidiary Exit Facility Conversion Date, Holdings may declare and repurchase, or may pay cash dividends or make other distributions ratably with respect to its equity holdersEquity Interests so that one or more of its parent holding companies (if any) may repurchase, (ii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its own Equity Interests owned by its present or former officers or employees of Holdings or the Restricted Subsidiaries or make payments to present or former officers or employees of Holdings or the Restricted Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in an connection with the death or disability, retirement or termination of employment of such present or former officers or employees; provided, that the aggregate amount of such Restricted Payments under this clause (i) shall not to exceed the sum of (A) in any calendar year $2,000,000 during any fiscal year2,000,000; provided that any unused amounts amount in any fiscal calendar year shall be permitted to may be carried over to subsequent fiscal years; provided that forward into any succeeding calendar year (plus the amount expended in any fiscal of net proceeds received by Holdings during such calendar year shall first be deemed to be from Employee Equity Sales and the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the of net proceeds of any key man life insurance received during such fiscal calendar year); and provided further, that the aggregate amount of such purchases or redemptions that may be made pursuant to this clause (iiii) so long as no Default or Event shall not exceed $10,000,000 (plus the amount of Default net proceeds received by Holdings after the date of this Agreement from Employee Equity Sales); (ii) this Section 6.06(a) shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment not apply to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value repurchases of Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests options or other convertible securities to the extent warrants if such Equity Interests represent a portion of the exercise price of such options or exchange price thereof warrants; (iii) any Restricted Subsidiary of Holdings may declare and (B) Parent may make a Restricted Payment Payments to, repurchase its Equity Interests from or make other distributions to Holdings or to allow any wholly owned Restricted Subsidiary of Holdings to(or, in the case of non wholly owned Restricted Subsidiaries, to Holdings or any Restricted Subsidiary that is a direct or indirect parent of such Restricted Subsidiary and Holdings may, purchase, redeem or otherwise acquire or retire for value to each other owner of Equity Interests of Holdings, Parent such Restricted Subsidiary on a pro rata basis (or more favorable basis from the Borrower made in lieu perspective of withholding taxes in connection with any exercise Holdings or exchange of stock options, warrants or other similar rightssuch Restricted Subsidiary) based on their relative ownership interests; and (iv) Parent may make a Restricted Payment to Holdings to allow Holdings toafter the Exit Facility Conversion Date, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdingsmay be made at any time when, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parentthereto, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to Payment Conditions are satisfied at such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributionstime.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower Holdings or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower Holdings or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by law, any Loan Document, agreement governing any Indebtedness permitted under Section 6.01(a) or (g) or to the extent such restrictions and conditions do not contravene the Loan Documents, under Section 6.01(m), (n) (with respect to Restricted Subsidiaries that are not Loan Parties), (o) or (p), (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of, or sale of the assets of, a Restricted Subsidiary pending such sale, ; provided such restrictions and conditions apply only to the Restricted Subsidiary that is or such assets that are to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (ED) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (FE) clause (i) of the foregoing shall not apply to customary restrictions or conditions imposed by the Term Loan Agreement and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the other “Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger” defined therein, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (HF) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition)Not for Profit Subsidiary.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may, or may make distributions to Holdings so that Holdings may, repurchase its Equity Interests or Equity Interests of Alpha Coal Management, LLC owned by its employees of Holdings, the Borrower or the Subsidiaries or make payments to employees of Holdings, the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans (including the Management Incentive Program) or in connection with the death or disability of such employees in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 500,000 in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) the Borrower may make Restricted Payments to Holdings (x) in an amount not to exceed, when taken together with the aggregate amount of all loans or advances made pursuant to Section 6.04(i) for such purpose, $1,000,000 in any fiscal year to the extent necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount equal to the Tax Amount; (iv) the Borrower may make Restricted Payments to Holdings sufficient for Holdings to pay the Closing Date Distribution; and (v) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent the Borrower may make a Restricted Payment Payments to Holdings in an aggregate amount not to allow Holdings toexceed $5,000,000 in any fiscal year, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings mayturn, make such Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) its equity holders so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 be 1.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested or less as of the most recently ended fiscal quarter completed period ending prior to such transaction for which the financial statements have been delivered pursuant to and certificates required by Section 5.04(a) or 5.04(b)) were required to be delivered, Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a after giving pro forma basis after giving effect to such Restricted Payment tested transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such transaction had occurred as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributionsfirst day of such period.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary that is not a Loan Party by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions restrictions or conditions imposed by the Senior Note Documents as in leases effect on the date hereof and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions provisions in leases and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict other contracts restricting the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition)assignment thereof.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may (A) repurchase its Equity Interests owned by employees of the Borrower or the Subsidiaries or make payments to employees of the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed $5,000,000 in any fiscal year, (B) repurchase, redeem or otherwise refinance the Existing Preferred Stock with the Net Cash Proceeds of (x) any Permitted Subordinated Indebtedness incurred by the Borrower pursuant to Section 6.01(h), (y) any Indebtedness under a Second Lien Facility incurred by the Borrower pursuant to Section 6.01(i) or (z) any additional Term Loans made pursuant to (1) Amendment No. 1 and Agreement dated as of November 22, 2006, to the Existing Credit Agreement, among the Borrower, the Subsidiary Guarantors, Bayerische Hypo-und Vereinsbank AG, New York Branch, Credit Suisse, as Administrative Agent, and the Required Lenders or (2) any future amendment to this Agreement that provides for the making of additional Term Loans hereunder or (C) repurchase its equity holders common Equity Interests in the open market or otherwise in an aggregate amount not to exceed the sum of (Ax) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year 10,000,000 and (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (By) the proceeds CNI Growth Amount as in effect immediately prior to the time of any key man life insurance received during the making of such fiscal year, Restricted Payment; (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent the Borrower may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value pay regularly scheduled cash dividends on any Preferred Equity Interests of Holdings, Parent or issued after the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities Prior Restatement Date to the extent such Equity Interests represent a portion of the exercise or exchange price incurrence thereof is permitted pursuant to Section 6.01, and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parenttherefrom, the Borrower and any Restricted Subsidiary may make other Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to under this clause (a)(iiv) of the definition of Available Amount so long as the Total Leverage Ratio would in an amount not to exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended $5,000,000 in any fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributionsyear.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document (or any Second Lien Facility Document), (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, Indebtedness and (ED) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Samples: Third Amended and Restated Credit Agreement (Atp Oil & Gas Corp)
Restricted Payments; Restrictive Agreements. (a) Declare No Group Member will declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary of Holdco’s Subsidiaries may declare and pay dividends or make other distributions ratably to its equity holders, (ii) beginning on July 1, 2008 and except during a Liquidity Trigger Period, so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, HoldingsHoldco may, Parent or the Borrower may make distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by its employees, officers, directors or consultants of Holdings, Holdco or the Subsidiaries or make payments to employees, officers, directors or consultants of Holdings, Holdco or the Subsidiaries in connection with the exercise of stock options (including for purposes of paying tax withholding applicable to stock option exercises), stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death, disability, retirement or termination of such employees in an aggregate amount not to exceed $50,000,000 in aggregate (plus the sum amount of Net Cash Proceeds (Ax) received by Holdco subsequent to the Closing Date from sales of Equity Interests of Holdco or, to the extent contributed to Holdco, any of Holdco direct or indirect parents, to directors, consultants, officers or employees of Holdco, any of its Subsidiaries or any direct or indirect parent of Holdco in connection with permitted employee compensation and incentive arrangements and (y) of any key-man life insurance policies received by Holdco or its Subsidiaries), (iii) Holdco may make Restricted Payments to Holdings (x) in an amount not to exceed, when taken together with the aggregate amount of all loans or advances made pursuant to Section 6.05(i) for such purposes, $2,000,000 during any fiscal year; provided that any unused amounts 1,000,000 in any fiscal year shall be permitted to be carried over the extent necessary to subsequent fiscal yearspay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay Holdings Tax liabilities (in an assumed amount equal to the hypothetical tax liability of the holders of Equity Interests in Holdings, calculated at the maximum combined net Federal, State and local income tax rate applicable to any holder of an Equity Interest in Holdings, in respect of the net taxable income of the Holdco Group); provided that the amount expended in any fiscal year shall first be deemed all Restricted Payments made to be from the amount allocated Holdings pursuant to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, clause (iii) so long as shall be used by Holdings for the purpose specified herein within 25 days of the receipt thereof, (iv) Holdco may declare and pay dividends or make other distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; provided that such additional Equity Interests shall not have any mandatory redemption or similar provisions, (v) Holdings and its Subsidiaries may make non-cash repurchases of Equity Interests deemed to occur upon the exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants, (vi) Holdco and its Subsidiaries may pay dividends or make other distributions on the Closing Date to consummate the Transactions and (vii) any Group Member may make any Restricted Payment if both immediately before and immediately after giving effect thereto, (x) no Default or Event of Default shall have occurred and be continuing or would result therefromcontinuing, (Ay) Parent may make a Restricted Payment to Holdings to allow Holdings toNet Domestic Availability, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or calculated on the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion basis of the exercise or exchange price thereof Borrowing Base Certificate most recently delivered but adjusted to give effect thereto, is not less than the product of (1) the Total Revolving Credit Commitment and (B2) Parent may make a Restricted Payment to Holdings to allow Holdings to, 15% and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or (z) the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall First Priority Leverage Ratio does not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 2.25 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax DistributionsPro Forma Basis.
(b) Enter No Group Member will enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdco or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower Holdco or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower Holdco or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary that is not a Loan Party by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, and (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Tower Automotive, LLC)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) Holdings may, provided that no Default or Event of Default has occurred and is continuing, declare and pay dividends or other distributions to holders of its Equity Interests and/or repurchase shares of its Equity Interests (and the Borrower and may make any Restricted Payments to Holdings which constitute dividends paid by Holdings or consideration for the repurchase of the Equity Interests of Holdings, in each case, pursuant to this clause (i)) (A) in an aggregate amount not to exceed $10,000,000 if after giving effect to such payment or repurchase, the covenants set forth in Sections 6.11 and 6.12 would be satisfied on a pro forma basis and (B) in an aggregate amount at any time not to exceed the Retained Excess Cash Flow Amount at such time if after giving effect to such payment or repurchase on a pro forma basis, the Net Leverage Ratio would not be in excess of 1.90:1.00, (ii) any Subsidiary may declare and pay dividends or make other distributions ratably (or in a manner more favorable to the Borrower or the Loan Parties) to its equity holders, (iiiii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsthe Borrower may, Parent or the Borrower may make distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by its employees of Holdings, the Borrower or the Subsidiaries or make payments to employees of Holdings, the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 5,000,000 in any fiscal year shall be permitted less the aggregate amount of Restricted Payments made pursuant to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year clause (without giving effect to any amounts carried over from prior fiscal yearsv) and then from the amount carried over to such fiscal year plus (Bof this Section 6.06(a) the proceeds of any key man life insurance received during such fiscal year, (iiiiv) the Borrower may make Restricted Payments to Holdings at any time (x) in an amount as may be necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) for so long as no Default Holdings files tax returns on a consolidated or Event combined basis with the Borrower and its Subsidiaries, in an amount necessary to pay such consolidated or combined Tax liabilities of Default shall have occurred Holdings (or its direct or indirect parent entity) which are allocable or attributable to (or arising as a result of) the operations of the Borrower and be continuing or would result therefromthe Subsidiaries; provided, however, that (A) Parent the amount of such dividends shall not exceed the amount that the Borrower and the Subsidiaries would be required to pay in respect of United States Federal, State and local taxes were the Borrower and the Subsidiaries to file their own consolidated or combined group and (B) all Restricted Payments made to Holdings (or its direct or indirect parent entity) pursuant to this clause (iv) are used by Holdings (or its direct or indirect parent entity) for the purposes specified herein within 20 days of the receipt thereof and (v) Holdings, the Borrower and the Subsidiaries may make a up to $5,000,000 of Restricted Payment Payments in any fiscal year to Holdings to allow Holdings totheir directors, and Holdings mayofficers or employees in connection with directors’ qualifying shares, purchaseincentive shares, redeem management or otherwise acquire employee compensation, stock option or retire for value other benefit plans permitted hereunder, including non-cash repurchases of Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent options if such Equity Interests represent a portion of the exercise or exchange purchase price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock such options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary or Joint Venture to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law law, by the HPUC Decision and Order or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, Indebtedness and (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) any Subsidiary (other than the Borrower and any Restricted Subsidiary Borrower) may declare and pay dividends or make other distributions ratably to its equity holders, (ii) Holdings or any Subsidiary may make Restricted Payments to the extent any such Restricted Payment constitutes an Investment permitted under Section 6.04, (iii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings may make dividends to its shareholders, Holdings may purchase or repurchase Equity Interests in Holdings, Parent or and the Borrower may repurchase its Equity Interests owned by its make distributions to Holdings to permit Holdings to make such dividends, purchases and repurchases or make payments to employees of Holdings, the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in an aggregate amount not to exceed connection with the sum death or disability of such employees; provided, that in each case under this clause (iii), (A) $2,000,000 during any such Restricted Payment shall not be made until the fiscal year; provided that any unused amounts year commencing February 1, 2008, (B) the aggregate amount of Restricted Payments made under this clause (iii) and clause (v) below combined in any fiscal year shall not exceed an amount equal to the sum of 50% of Excess Cash Flow for the immediately preceding fiscal year (the "Base Amount") (commencing with the fiscal year ending January 31, 2008) plus the unused portion of any Base Amount from prior fiscal years (but not prior to the fiscal year ending January 31, 2008) and (C) no such Restricted Payment shall be permitted made unless, after giving effect thereto, the Leverage Ratio would be no greater than 2.75:1.0 as of the most recently completed fiscal quarter ending prior to the date of such Restricted Payment for which the financial statements and certificates described in Sections 5.04(a) or 5.04(b) and 5.04(d) were required to be carried over delivered, (iv) the Borrower may make Restricted Payments to subsequent fiscal years; provided that Holdings (x) in an amount not to exceed, when taken together with the aggregate amount expended of all loans or advances made pursuant to Section 6.04(i) for such purpose, $500,000 in any fiscal year shall first be deemed to be from the extent necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay the Tax liabilities of Holdings directly attributable to (or arising as a result of) the operations of the Borrower and the Subsidiaries; provided that (A) the amount allocated of such dividends pursuant to such fiscal year clause (without giving effect to any amounts carried over from prior fiscal yearsiv) and then from (y) shall not exceed the amount carried over that the Borrower and the Subsidiaries would be required to pay in respect of Federal, State and local Taxes were the Borrower and the Subsidiaries to pay such fiscal year plus Taxes as stand-alone taxpayers and (B) all Restricted Payments made to Holdings pursuant to clause (iv) shall be used by Holdings for the proceeds purpose specified herein within 20 days of any key man life insurance received during such fiscal yearthe receipt thereof, and (iiiv) in connection with the Irish Recapitalization, Holdings and its Subsidiaries may engage in the following transactions, in each case in accordance with all applicable laws, including the Companies Xxx 0000 of Ireland and so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, : (A) Parent Holdings and any Subsidiary may make a purchase, repurchase or redeem Equity Interests in Holdings; provided, that in each case under this (v)(A), (1) any such Restricted Payment to Holdings to allow Holdings toshall not be made until the fiscal year commencing February 1, and Holdings may2008, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or (2) the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make aggregate amount Restricted Payments made under this clause (v) and clause (iii) above combined in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower any fiscal year shall not exceed $500,000 in an amount equal to the aggregate; sum of 50% of Excess Cash Flow for the immediately preceding fiscal year (v"Base Amount") Parent may make a (commencing with the fiscal year ending January 31, 2008) plus the unused portion of any Base Amount from the prior fiscal years (but not prior to the fiscal year ending January 31, 2008) and (3) no such Restricted payment to Holdings to allow Holdings toPayment shall be made unless, and Holdings mayafter giving effect thereto, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested be no greater than 2.75:1.0 as of the most recently ended completed fiscal quarter ending prior to the date of such Restricted Payment for which the financial statements have been delivered pursuant to Section and certificates described in Sections 5.04(a) or 5.04(b)) and 5.04(d) were required to be delivered, Holdings(B) Holdings may cancel any Equity Interests so repurchased or redeemed or hold same as treasury shares, Parent(C) the Borrower or any Subsidiary may relinquish any Equity Interests held by it in Holdings to Holdings for the purpose of such cancellation, and (D) the Borrower and any Restricted Subsidiary may declare and/or pay dividends to Holdings to enable Holdings to effect the transactions referred to in clause (v)(A) above to the extent Holdings is permitted to make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to under clause (a)(iv)(A) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributionsabove.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower Borrower, Holdings or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary that is not a Loan Party by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, Indebtedness and (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holdersholders of a given class, (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its employees of the Borrower or the Subsidiaries or make payments to employees of the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 10,000,000 in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) with respect to Convertible Indebtedness that is permitted under this Agreement, (A) the Borrower may issue or otherwise deliver shares of its common stock and make cash payments in connection with any conversion of Convertible Indebtedness from and after the Effective Date, provided such cash payments (excluding any cash payments in lieu of issuing any fractional shares of common stock) are in an aggregate amount not exceeding the sum of (x) the principal amount of such Convertible Indebtedness plus (y) any payments received by the Borrower or any of its Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge Transaction, (B) the Borrower may make any payments in connection with a Permitted Bond Hedge Transaction and the settlement of any related Permitted Warrant Transaction by (x) delivery of shares of the Borrower’s common stock upon settlement thereof, or (y) payment of an early termination amount thereof in common stock upon any early termination thereof and (C) the Borrower may make payments of interest on such Convertible Indebtedness in accordance with its terms, and (iv) so long as (A) no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, (AB) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion at least $25,000,000 of the exercise or exchange price thereof Total Commitment is unused and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis available after giving effect to such Restricted Payment tested Payment, and (C) the Borrower would be in compliance with the covenants set forth in Sections 6.10, 6.11 and 6.12 as of the most recently ended completed period of four consecutive fiscal quarter quarters ending prior to such transaction for which the financial statements have been delivered pursuant to required by Section 5.04(a) or 5.04(b)) have been delivered or for which comparable financial statements have been filed with the SEC (and if such Restricted Payment is incurred prior to the delivery of financial statements for the fiscal quarter ending March 31, Holdings, Parent2018, the Borrower would be in pro forma compliance with the covenants set forth in Sections 6.10, 6.11 and 6.12 for the fiscal quarter ending March 31, 2018 as if such ratios were then applicable), after giving pro forma effect (using the criteria therefor described in Section 6.04(i)) to such transaction and to any Restricted Subsidiary other event occurring during or after such period as to which pro forma recalculation is appropriate as if such transaction had occurred as of the first day of such period, the Borrower may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributionsin any amount.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets in favor of the Administrative Agent or any successor thereto hereunder or under any agreement that replaces or refinances this Agreement, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, and (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) Holdings may, provided that no Default or Event of Default has occurred and is continuing, declare and pay dividends or other distributions to holders of its Equity Interests and/or repurchase shares of its Equity Interests (and the Borrower and may make any Restricted Payments to Holdings which constitute dividends paid by Holdings or consideration for the repurchase of the Equity Interests of Holdings, in each case, pursuant to this clause (i)) (A) in an aggregate amount not to exceed $5,000,000 if after giving effect to such payment or repurchase, the covenants set forth in Sections 6.11 and 6.12 would be satisfied on a pro forma basis and (B) in an aggregate amount at any time not to exceed the Retained Excess Cash Flow Amount at such time if after giving effect to such payment or repurchase on a pro forma basis, the Net Leverage Ratio would not be in excess of 1.75:1.00, (ii) any Subsidiary may declare and pay dividends or make other distributions ratably (or in a manner more favorable to the Borrower or the Loan Parties) to its equity holders, (iiiii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsthe Borrower may, Parent or the Borrower may make distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by its employees of Holdings, the Borrower or the Subsidiaries or make payments to employees of Holdings, the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 5,000,000 in any fiscal year shall be permitted less the aggregate amount of Restricted Payments made pursuant to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year clause (without giving effect to any amounts carried over from prior fiscal yearsv) and then from the amount carried over to such fiscal year plus (Bof this Section 6.06(a) the proceeds of any key man life insurance received during such fiscal year, (iiiiv) the Borrower may make Restricted Payments to Holdings at any time (x) in an amount as may be necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) for so long as no Default Holdings files tax returns on a consolidated or Event combined basis with the Borrower and its Subsidiaries, in an amount necessary to pay such consolidated or combined Tax liabilities of Default shall have occurred Holdings (or its direct or indirect parent entity) which are allocable or attributable to (or arising as a result of) the operations of the Borrower and be continuing or would result therefromthe Subsidiaries; provided, however, that (A) Parent the amount of such dividends shall not exceed the amount that the Borrower and the Subsidiaries would be required to pay in respect of United States Federal, State and local taxes were the Borrower and the Subsidiaries to file their own consolidated or combined group and (B) all Restricted Payments made to Holdings (or its direct or indirect parent entity) pursuant to this clause (iv) are used by Holdings (or its direct or indirect parent entity) for the purposes specified herein within 20 days of the receipt thereof and (v) Holdings, the Borrower and the Subsidiaries may make a up to $5,000,000 of Restricted Payment Payments in any fiscal year to Holdings to allow Holdings totheir directors, and Holdings mayofficers or employees in connection with directors’ qualifying shares, purchaseincentive shares, redeem management or otherwise acquire employee compensation, stock option or retire for value other benefit plans permitted hereunder, including non-cash repurchases of Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent options if such Equity Interests represent a portion of the exercise or exchange purchase price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock such options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary or Joint Venture to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law law, by the HPUC Decision and Order or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, Indebtedness and (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay make dividends or make other distributions ratably to its equity holders, (ii) Holdings and any Subsidiary may purchase, redeem, retire, defease or otherwise acquire for value any of the Equity Interests of Holdings (A) in exchange for other Equity Interests of Holdings (including in connection with a Benefit Plan Exchange Offer), (B) upon the conversion of preferred Equity Interests of Holdings or the vesting, delivery, exercise, exchange or conversion of stock options, restricted stock units, warrants or similar rights to acquire Equity Interests of Holdings, (C) in connection with any tender by the holder of Equity Interests of Holdings of such Equity Interests in payment of withholding or other taxes relating to the vesting, delivery, exercise, exchange or conversion of stock options, restricted stock, restricted stock units, warrants or other Equity Interests of Holdings or other similar rights to acquire Equity Interests of Holdings or (D) if tendered in settlement of indemnification or similar claims by Holdings against a holder of the Equity Interests of Holdings, (iii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsthe Borrower may, Parent or the Borrower may make distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by its employees of Holdings, the Borrower or the Subsidiaries or make payments to employees of Holdings, the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 2,500,000 in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause a Loan Party in connection with a Permitted Reorganization, (a)(iv) Holdings may make (A) Restricted Payments of Qualified Capital Stock contemplated by the definition Rights Offering and (B) Restricted Payments for the repayment or redemption of Available Amount so long as Holdings’ 6% Series H Convertible Redeemable Preferred Stock with proceeds from the Total Leverage Ratio would Rights Offering and/or the conversion of such 6% Series H Convertible Redeemable Preferred Stock into Common Stock, and cash dividends in respect of such 6% Series H Convertible Redeemable Preferred Stock, (vi) Holdings, and its Subsidiaries may dividend or distribute cash in lieu of issuing fractional shares of its Equity Interests in an aggregate amount not to exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); $25,000, and (vii) Holdings and Parent the Borrower may make Permitted Restricted Payments to Holdings (w) to the extent necessary to pay scheduled principal and interest payments of Indebtedness permitted to be incurred by Holdings under Section 6.01, (x) in an amount not to exceed $1,000,000 in any fiscal year, to the extent necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay the Tax Distributionsliabilities of Holdings directly attributable to (or arising as a result of) the operations of the Borrower and the Subsidiaries; provided, however, that (A) the amount of such dividends under subclause (y) shall not exceed the amount that the Borrower and the Subsidiaries would be required to pay in respect of Federal, State and local taxes were the Borrower and the Subsidiaries to pay such taxes as stand alone taxpayers and (B) all Restricted Payments made to Holdings pursuant to this clause (vii) are used by Holdings for the purposes specified herein within 30 days of the receipt thereof.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to sales of assets and the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted assets or Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by contained in the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunderSecond Lien Credit Agreement or the other Second Lien Loan Documents, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, ; (E) the foregoing shall not apply to any instrument governing Indebtedness permitted by Section 6.01(l) assumed in connection with any Permitted Acquisition, which encumbrance or restriction is not applicable to any person, or the properties or assets of any person, other than the person or the properties or assets of the person so acquired; (F) the foregoing shall not apply to restrictions on cash or other deposits or net worth imposed by suppliers or landlords under contracts entered into in the ordinary course of business; (G) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof; (H) the foregoing shall not apply to customary provisions restricting assignments, subletting or other transfers contained in leases, licenses, joint venture agreements, partnership agreements, limited liability company agreements and similar agreements entered into in the ordinary course of business; (FI) the foregoing shall not apply to any agreement in effect at the time such Subsidiary becomes a Subsidiary of Holdings, so long as such agreement was not entered into in connection with or in contemplation of such person becoming a Subsidiary; and (J) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions Southern Company Agreement as in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewalis permitted to be amended, extension supplemented, renewed, replaced, or replacement does not expand the scope of any applicable restriction or conditionotherwise modified from time to time, in each case, pursuant to Section 6.09(a)(iii).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, (ii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its future, present or former officers, directors, employees or consultants of the Borrower or the Subsidiaries or make payments to officers, directors, employees or consultants of the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity-based incentives pursuant to management incentive plans or other similar agreements or in connection with the death or disability of such employees in an aggregate amount not to exceed $10,000,000 (increasing on and after the sum of (AAcquisition Closing Date to $12,000,000) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event the Borrower may effect the Special Distribution with the proceeds of Default shall have occurred and be continuing or would result therefromthe Term Loans made hereunder[Reserved], (Aiv) Parent the Borrower may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests cash payments in lieu of Holdings, Parent or the Borrower deemed to occur upon issuance of fractional shares in connection with the exercise of stock options, warrants, rights to acquire Equity Interests options or other securities convertible securities to the extent such Equity Interests represent a portion of the exercise into or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire exchangeable for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; and, (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom (determined in the case of any dividend payable by the Borrower to the holders of its common Equity Interests generally, at the time of declaration thereof, so long as such dividends are paid within 60 days of such declaration), the Borrower may make additional Restricted Payments (A) in an aggregate amount not to exceed (x) from the Closing Date to the Acquisition Closing Date $15,000,000 (less the amount of payments made pursuant to Section 6.09(b)(ii)(A)),(x) prior to the Acquisition Closing Date) and (y) from and after the Total Acquisition Closing Date, $18,000,000 (less the amount of payments made pursuant to Section 6.09(b)(ii)(A)(y) on or after the Acquisition Closing Date) (B) with amounts available under the Available Builder Basket at such time; provided that, with respect to this clause (B), the Leverage Ratio would not exceed 4.75 to 1.00 not, on a pro forma basis after giving effect to such Restricted Payment tested and the financing therefor, exceed 2.50:1.00 as of the end of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(acompleted Test Period and (C) or 5.04(b), Holdings, Parent, with the then-available Available Equity Proceeds and (vi) the Borrower and or any Restricted Subsidiary may of its Subsidiaries make Restricted Payments from the Available Amount; provided that Restricted Payments may any payments required to be made pursuant to clause (a)(i) of under the definition of Available Amount so long as Merger Agreement or the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax DistributionsPurchase Agreement.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or regulation or by any Loan Document, or, in the case of Registered Securities Exchange Subsidiaries, required by the regulator thereof, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, Indebtedness and (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare No Group Member will declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary of Holdco’s Subsidiaries may declare and pay dividends or make other distributions ratably to its equity holders, (ii) beginning on July 1, 2008, so long as no Default shall have occurred and be continuing or would result therefrom, Holdco may, or may make distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by employees, officers, directors or consultants of Holdings, Holdco or the Subsidiaries or make payments to employees, officers, directors or consultants of Holdings, Holdco or the Subsidiaries in connection with the exercise of stock options (including for purposes of paying tax withholding applicable to stock option exercises), stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death, disability, retirement or termination of such employees in an amount not to exceed $50,000,000 in aggregate (plus the amount of Net Cash Proceeds (x) received by Holdco subsequent to the Closing Date from sales of Equity Interests of Holdco or, to the extent contributed to Holdco, any of Holdco direct or indirect parents, to directors, consultants, officers or employees of Holdco, any of its Subsidiaries or any direct or indirect parent of Holdco in connection with permitted employee compensation and incentive arrangements and (y) of any key-man life insurance policies received by Holdco or its Subsidiaries), (iii) Holdco may make Restricted Payments to Holdings (x) in an amount not to exceed, when taken together with the aggregate amount of all loans or advances made pursuant to Section 6.05(i) for such purposes, $1,000,000 in any fiscal year to the extent necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay Holdings Tax liabilities (in an assumed amount equal to the hypothetical tax liability of the holders of Equity Interests in Holdings, calculated at the maximum combined net Federal, State and local income tax rate applicable to any holder of an Equity Interest in Holdings, in respect of the net taxable income of the Holdco Group); provided that all Restricted Payments made to Holdings pursuant to clause (iii) shall be used by Holdings for the purpose specified herein within 25 days of the receipt thereof, (iv) Holdco may declare and pay dividends or make other distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; provided that such additional Equity Interests shall not have any mandatory redemption or similar provisions, (v) Holdings and its Subsidiaries may make non-cash repurchases of Equity Interests deemed to occur upon the exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants, (vi) Holdco and its Subsidiaries may pay dividends or make other distributions on the Closing Date to consummate the Transactions and (vii) any Group Member may make any Restricted Payment if both immediately before and immediately after giving effect thereto, (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders in an aggregate amount not to exceed the sum of and (A) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (By) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall First Priority Leverage Ratio does not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 2.25 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax DistributionsPro Forma Basis.
(b) Enter No Group Member will enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdco or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower Holdco or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower Holdco or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary that is not a Loan Party by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, and (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Samples: First Lien Term Loan and Guaranty Agreement (Tower Automotive, LLC)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holdersholders (so long as, to the extent such Subsidiary is not a wholly owned Subsidiary, such dividends or distributions are made on a pro rata basis), (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may (x) repurchase its Equity Interests owned by, or make payments to, employees, officers or directors (or former employees, officers or directors) of the Borrower or the Subsidiaries or any family member of, or trust or other entity for the benefit of, any of the foregoing persons (A) if such repurchases or payments are contemplated by the Shareholders Agreement or (B) upon termination of their employment, in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees, (y) otherwise make Restricted Payments in connection with the purchase or repurchase by the Borrower or the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives or (z) repurchase up to $5,000,000 of its equity holders Qualified Capital Stock in any fiscal year pursuant to publicly announced open market repurchase transactions, in all cases in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 10,000,000 in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that (it being agreed that, if the amount expended in Leverage Ratio as at the end of any fiscal year shall first be deemed of the Borrower is less than 2.25 to be from 1.0, the unutilized amount allocated to (if any) for such fiscal year (without giving effect not to exceed $5,000,000 and reduced by any unutilized amount carried forward to such fiscal year) may be carried forward to the next fiscal year); provided, however, that (1) any amounts carried over from prior fiscal yearsforward shall not be used to repurchase Qualified Capital Stock and (2) and then from no Restricted Payments may be made pursuant to subclause (y) or (z) of this clause (ii) if the amount carried over Net Leverage Ratio after giving effect thereto would be greater than 2.25 to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year1.00, (iii) so long as no Default the Borrower and each Subsidiary may declare and pay dividends payable solely in shares of common stock or Event other Qualified Capital Stock of Default shall have occurred and be continuing the Borrower or would result therefromsuch Subsidiary, (Aiv) Parent the Borrower may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise repurchase, defease, acquire or retire for value Equity Interests the capital stock of Holdingsthe Borrower or options, Parent warrants or other rights to acquire such capital stock solely in exchange for, or out of the proceeds of the sale of (so long as such purchase, repurchase, redemption, defeasance, acquisition or retirement is consummated within sixty (60) days of such sale) Qualified Capital Stock of the Borrower or options, warrants or other rights to acquire such Qualified Capital Stock, (v) repurchases of capital stock of the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests options or other convertible securities warrants solely to the extent that shares of such Equity Interests capital stock represent a portion of the exercise price of such options or exchange price thereof warrants, and (Bvi) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests the making of Holdings, Parent or the Borrower made cash payments in lieu of withholding taxes the issuance of fractional shares in connection with any the exercise or exchange of stock optionswarrants, warrants options or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu securities convertible into or exchangeable for equity interests of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant any agreement relating to the Security Documentssale of any property permitted under this Agreement pending the consummation of such sale, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions any agreement in effect on at the Closing Date as shown on Schedule 3.10 (and any renewaltime a person becomes a Subsidiary of the Borrower, extension or replacement therefor so long as such renewalagreement was not entered into in connection with or in contemplation of such person becoming a Subsidiary of the Borrower, extension which encumbrance or replacement does restriction is not expand applicable the scope properties or assets of any applicable restriction Loan Party, other than the Subsidiary, or condition)the property or assets of the Subsidiary, so acquired.
Appears in 1 contract
Samples: Credit Agreement (Deltek, Inc)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that that:
(i) the Borrower and any Restricted Subsidiary of Holdings may declare and pay dividends or make other distributions Restricted Payments ratably to its equity holders,
(a) Holdings and any Subsidiary may pay or make dividends or distributions to any holder of its Qualified Capital Stock in the form of additional shares of Qualified Capital Stock of the same class, and may exchange one class or type of Qualified Capital Stock with shares of another class or type of Qualified Capital Stock and (iib) Holdings may make distributions and payments to any Parent Company, Permitted Investor or Affiliate thereof holding Subordinated Shareholder Loans in the form of additional Subordinated Shareholder Loans, and may capitalize the interest on its Subordinated Shareholder Loans;
(iii) Holdings may make Restricted Payments to pay for the purchase, repurchase, retirement, defeasance, redemption or other acquisition for value of Equity Interests of Holdings, or any Parent Company held by any future, present or former employee, director or consultant of Holdings or any Parent Company or any Subsidiary of Holdings pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or other agreement or arrangement; provided that the aggregate Restricted Payments made under this clause (iii) after the 2016 Restatement Date do not exceed $25,000,000 in any calendar year (with unused amounts in any calendar year being permitted to be carried over for the two succeeding calendar years subject to a maximum payment of $50,000,000 in any calendar year);
(iv) Holdings may make Restricted Payments to any Parent Company in amounts required for such Parent Company to pay national, state or local income taxes (as the case may be) imposed directly on such Parent Company to the extent such income taxes are attributable to the income of Holdings and its Subsidiaries (including, without limitation, by virtue of such Parent Company being the common parent of a consolidated or combined tax group of which Holdings or its Subsidiaries are members); provided, however, that in no event shall Holdings make Restricted Payments pursuant to this Section 6.06(a)(iv) in an amount greater than the amount Holdings would pay on such income to a taxing authority were such income taxes to be computed for Holdings and its Subsidiaries on a separate return basis (taking into account tax attributes from prior years);
(v) Holdings may make Restricted Payments (A) in amounts required for any Parent Company or any Affiliate thereof, if applicable, to pay fees and expenses (including franchise or similar taxes) required to maintain its corporate existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers, directors and employees of any Parent Company or of any Affiliate thereof, if applicable, and general corporate operating and overhead expenses (including compliance and reporting expenses) of any Parent Company or any Affiliate thereof, if applicable, in each case to the extent such fees and expenses are attributable to the ownership or operation of Holdings, if applicable, and their respective Subsidiaries; provided, that for so long as such Parent Company owns no Default material assets other than Equity Interests in Holdings or any Parent Company, such fees and expenses shall be deemed for purposes of this clause (A) to be attributable to such ownership or operation and (B) in amounts required for any Parent Company to pay fees and expenses, other than to Affiliates of Holdings, related to any unsuccessful equity or debt offering of such Parent Company; and provided further that such amounts reduce Consolidated Net Income pursuant to the definition of such term;
(vi) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(vii) Restricted Payments by Holdings or any Subsidiary to allow the payment of cash in lieu of the issuance of fractional shares upon the exercise of options or warrants or upon the conversion or exchange of Equity Interests of any such Person;
(viii) after a Qualified Public Offering, Holdings may pay dividends and make distributions to any Parent Company, so that such Parent Company can pay dividends and make distributions to, or repurchase or redeem its Equity Interests from, its equity holders in an amount generating a 3.00% annual yield payable to all equity holders (such yield to be determined based on the initial public offering price of the Equity Interests sold in such Qualified Public Offering); provided that both before and after giving effect thereto, (x) no Event of Default shall have occurred and be continuing or and (y) Holdings would result therefrombe in Pro Forma Compliance;
(ix) Holdings may make Restricted Payments, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; Available Amount, provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without both before and after giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal yearthereto, (iiix) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (By) Parent Holdings would be in Pro Forma Compliance;
(x) Holdings or any Subsidiary may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdingsan aggregate amount not to exceed $90,000,000;
(xi) Holdings may make Restricted Payments to pay Management Fees, Parent or the Borrowerplus out-of-pocket expense reimbursement; provided that both before and after giving effect thereto, no Event of Default shall have occurred and be continuing;
(xii) Holdings or any Subsidiary may make a distribution, as a dividend or otherwise, of the Equity Interests of, or Indebtedness owed to Holdings or any Subsidiary by, an Unrestricted Subsidiary; provided that both before and after giving effect thereto, no Event of Default shall have occurred and be continuing;
(xiii) Holdings or any Subsidiary may make Restricted Payments in an aggregate amount, together with the aggregate principal amount of Indebtedness paid, redeemed or otherwise acquired for value pursuant to Section 6.09(c)(ii), not to exceed the amount of cash paid by Holdings, Parent Excluded Contributions; and
(xiv) Holdings or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent any Subsidiary may make a unlimited Restricted payment to Holdings to allow Holdings toPayments; provided that (x) both before and after giving effect thereto, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and (y) the Total Leverage Ratio would Ratio, calculated on a Pro Forma Basis, shall not exceed 4.75 4.25 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions1.0.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur Payment (including pursuant to any obligation (contingent or otherwise) to do soSynthetic Purchase Agreement); provided, however, that that
(i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, ;
(ii) the Borrower may pay the CHS Dividend on the Closing Date;
(iii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its current or former employees, directors or consultants of the Borrower or the Subsidiaries or make payments to employees, directors or consultants of the Borrower or the Subsidiaries in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans in an aggregate amount not to exceed the sum of (A) $2,000,000 during 20,000,000 in any fiscal year; provided that any unused amounts ;
(iv) [reserved];
(v) in any fiscal year shall be addition to Restricted Payments permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year by clauses (without giving effect to any amounts carried over from prior fiscal yearsi) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, through (iii) above, so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make other Restricted Payments in an aggregate amount from and after the Closing Date not to exceed $30,000,000 less the amount of payments made from and after the Closing Date pursuant to Section 6.09(b)(i);
(vi) the Borrower may net shares under employee benefits plans to settle option price payments owed by employees and directors with respect thereto and to settle employees’ and directors’ Federal, state and income tax liabilities (if any) related thereto;
(vii) the Borrower may make other Restricted Payments; provided that at the time any such Restricted Payment is made and after giving effect thereto, the ABL Payment Conditions shall have been satisfied;
(viii) so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, the Borrower may (A) Parent repurchase any of its Equity Interests, or (B) make payments to employees, directors or consultants of the Borrower or the Subsidiaries in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans, in each case in an aggregate amount not to exceed the Received Exercise Proceeds Amount at the time such Restricted Payment is made;
(ix) so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, the Borrower may make other Restricted Payments in an aggregate amount not to exceed $10,000,000 in any fiscal year, beginning with the fiscal year ending December 31, 2016;
(x) other than Restricted Payments described in clause (vii) above, the Borrower or any Subsidiary may make a Restricted Payment to Holdings to allow Holdings topayment of any dividend or distribution within 60 days after the date of declaration thereof, and Holdings may, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(xi) the Borrower or any Subsidiary may make a purchase, redeem repurchase, redemption, defeasance or otherwise acquire other acquisition or retire for value retirement of preferred Equity Interests made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the substantially concurrent sale of, preferred Equity Interests of Holdings, Parent or the Borrower (other than Disqualified Stock and other than preferred Equity Interests sold to a Subsidiary) or a substantially concurrent contribution to the equity (other than through the issuance of Disqualified Stock or by preferred Equity Interests sold to any Subsidiary) of the Borrower;
(xii) the Borrower may make payments to holders of Equity Interests of the Borrower in lieu of the issuance of fractional shares of such Equity Interests, provided, however, that any such payment shall not be for the purpose of evading any limitation of this covenant or otherwise to facilitate any dividend or other return of capital to the holders of such Equity Interests (as determined in good faith by the Board of Directors of the Borrower);
(xiii) the Borrower or any Subsidiary may make purchases, repurchases, redemptions, defeasances or other acquisitions or retirements of Equity Interests deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests warrants or other convertible securities to the extent rights in respect thereof if such Equity Interests represent a portion of the exercise price thereof; and
(xiv) the Borrower or exchange price thereof and (B) Parent any Subsidiary may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem pay dividends or otherwise acquire or retire for value other distributions of Equity Interests of Holdingsof, Parent or Indebtedness owed to the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock optionsa Subsidiary by, warrants Unrestricted Subsidiaries (unless the Unrestricted Subsidiary’s principal asset is cash or other similar rights; cash equivalents (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(bincluding Permitted Investments), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Borrower or any Restricted Subsidiary (other than any Permitted Joint Venture Subsidiary) to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations, or (ii) the ability of any Restricted Subsidiary (other than any Permitted Joint Venture Subsidiary) to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary Guarantor or to Guarantee Indebtedness of the Borrower or any other Restricted SubsidiarySubsidiary Guarantor; provided (x) that (A) the foregoing shall not apply to restrictions and conditions (A) imposed by law or by any Loan DocumentDocument or any Senior Note Indenture, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary or other assets pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary or assets that is are to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) imposed pursuant to other Indebtedness incurred pursuant to Section 6.01 with such encumbrances and restrictions that, taken as a whole, are not more restrictive than the terms hereof, (E) [reserved], (F) on Permitted Joint Ventures or other joint ventures permitted under Section 6.04 and Permitted Syndication Subsidiaries imposed by the terms of the agreements governing the same, (G) applicable to an Acquired Entity at the time such Acquired Entity became a Subsidiary, so long as such restriction or encumbrance was not created in contemplation of or in connection with such Acquired Entity becoming a Subsidiary and apply only to such Acquired Entity, (H) under any agreements evidencing any Indebtedness permitted to be incurred under Section 6.01, and
(I) contained in the Term Loan Credit Agreement or the other Term Loan Documents; provided that such restrictions and conditions are no more onerous than those set forth in the Term Loan Documents in effect on the Closing Date; and (y) clause (i) of the foregoing shall not apply to restrictions or conditions (A) that are customary provisions in leases and other contracts restricting the assignment thereof and any right of first refusal and (B) imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, Make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that that:
(i) each Restricted Subsidiary may make Restricted Payments to the Borrower, any other Restricted Subsidiary, or any other Person that owns a direct Equity Interest in such Restricted Subsidiary, ratably according to their respective holdings of the type, class or ranking of Equity Interest in respect of which such Restricted Payment is being made or in a manner more favorable to the Borrower and any the Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, Subsidiaries;
(ii) so long as the Borrower may make Restricted Payments from Available Cash to the extent that (x) no Default or Event of Default shall have has occurred and be is continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would immediately result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis (y) immediately before and after giving effect to such Restricted Payment tested as of Payment, the most recently ended fiscal quarter for which financial statements have been delivered pursuant Borrower’s Interest Coverage Ratio is greater than or equal to Section 5.04(a2.25:1.00;
(iii) or 5.04(b), Holdings, Parent, the Borrower and any each Restricted Subsidiary may declare and make Restricted Payments from dividend payments or other distributions payable solely in preferred, common or subordinated Equity Interests of such Person(s) and the Available AmountBorrower may issue common Equity Interests upon conversion of subordinated or preferred Equity Interests; provided that (1) the Borrower may not issue any general partnership interests to any Person other than the General Partner and (2) any such Equity Interests issued pursuant to this clause (iii) are not Disqualified Stock;
(iv) Restricted Payments may be made pursuant to clause (a)(i) in the form of the definition issuance of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as Equity Interests of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) Borrower in connection with the cashless exercise of options, warrants, conversion and other rights or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions tax withholding with respect to any the exercise of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness equity based awards under employee equity incentive compensation programs of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan DocumentBorrower, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold Subsidiaries, the General Partner and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) management Affiliate of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).General Partner;
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsthe Borrower may, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders make distributions to Holdings so that Holdings may (x) make Restricted Payments in an aggregate amount after the Restatement Date not to exceed $15,000,000, (y) if at the end of any fiscal year, commencing with the fiscal year ending on or around June 30, 2005, the Leverage Ratio was less than 3.0 to 1.0 and the Senior Leverage Ratio was less than 1.25 to 1.0, make Restricted Payments during the following fiscal year in an aggregate amount not to exceed 50% of Excess Cash Flow for the sum fiscal year then ended so long as, after giving effect to any such Restricted Payment, the Leverage Ratio would be less than 3.0 to 1.0 and the Senior Leverage Ratio would be less than 1.25 to 1.0 and (z) repurchase its Equity Interests owned by employees of Holdings, the Borrower or the Subsidiaries or make payments to employees of Holdings, the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed $8,000,000 in any fiscal year, of which the aggregate amount paid to any one such employee (or estate of such employee) shall not exceed $4,000,000, (iii) the Borrower may make Restricted Payments or make loans and advances to Holdings (x) in an amount not to exceed $250,000 in any fiscal year, to the extent necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to make Tax Payments directly attributable to (or arising as a result of) the operations of the Borrower and the Subsidiaries; provided, however, that (A) the amount of such dividends shall not exceed the amount that the Borrower and the Subsidiaries would be required to pay in respect of Federal, State and local taxes were the Borrower to pay such taxes as a stand-alone taxpayer and (B) all Restricted Payments made to Holdings pursuant to this clause (iii) are used by Holdings for the purposes specified herein within 30 days of the receipt thereof, (iv) the Borrower may, or the Borrower may make distributions to Holdings so that Holdings may, make the Existing Holdings Notes Redemption in accordance with Section 6.09(c)(iv)(A), (v) the Borrower may, or the Borrower may make distributions to Holdings so that Holdings may, prepay, repurchase or redeem Existing Holdings Notes or New Holdings Notes in accordance with Section 6.09(c)(i), (vi) the Borrower may make distributions to Holdings at such times and in such amounts, not exceeding $2,000,000 12,000,000 during any fiscal year; provided that any unused amounts in any fiscal year , as shall be permitted necessary to be carried over permit Holdings to subsequent fiscal years; provided that pay, as and when due, cash payments of interest on the amount expended in any fiscal year shall first be deemed to be from New Holdings Notes if at the amount allocated to such fiscal year (without time thereof and after giving effect to any amounts carried over from prior fiscal yearsthereto (A) and then from the amount carried over to such fiscal year plus (B) the proceeds no Event of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefromcontinuing, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of be at least .25 times less than the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total maximum Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as then permitted by Section 6.13 and (C) there are at least $15,000,000 of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); unused and available Revolving Credit Commitments, and (vii) after the prepayment in full of the Existing Holdings and Parent Notes, Holdings may make Permitted Tax Distributionsuse up to $91,600,000 of the net cash proceeds of the New Holdings Notes to pay the Special Dividend.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations or any refinancing thereof, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness Indebtedness, Capital Lease Obligations or Synthetic Lease Obligations permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, Indebtedness or subject to such lease and (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Samples: Credit Agreement (Buffets Inc)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur Payment (including pursuant to any obligation (contingent or otherwise) to do soSynthetic Purchase Agreement); provided, however, that that
(i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, ;
(ii) the Borrower may pay the CHS Dividend on the Closing Date;
(iii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its current or former employees, directors or consultants of the Borrower or the Subsidiaries or make payments to employees, directors or consultants of the Borrower or the Subsidiaries in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans in an aggregate amount not to exceed the sum of (A) $2,000,000 during 20,000,000 in any fiscal year; provided that any unused amounts ;
(iv) [reserved];
(v) in any fiscal year shall be addition to Restricted Payments permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year by clauses (without giving effect to any amounts carried over from prior fiscal yearsi) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, through (iii) above, so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent the Borrower may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or an aggregate amount from and after the Borrower; provided that Closing Date not to exceed $30,000,000 less the amount of cash paid by Holdings, Parent or payments made from and after the Closing Date pursuant to Section 6.09(b)(i);
(vi) the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; may net shares under employee benefits plans to settle option price payments owed by employees and directors with respect thereto and to settle employees’ and directors’ Federal, state and income tax liabilities (vif any) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; related thereto;
(vivii) so long as (A) no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and after giving effect thereto, the Total Leverage Ratio would shall not be greater than 4.90 to 1.00, the Borrower may make other Restricted Payments in an amount not to exceed 4.75 to 1.00 on a pro forma basis after giving effect to the Available Amount at the time such Restricted Payment tested is made;
(viii) so long as no Event of the most recently ended fiscal quarter for which financial statements Default or Default shall have been delivered pursuant to Section 5.04(a) occurred and be continuing or 5.04(b), Holdings, Parentwould result therefrom, the Borrower may (A) repurchase any of its Equity Interests, or (B) make payments to employees, directors or consultants of the Borrower or the Subsidiaries in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans, in each case in an aggregate amount not to exceed the Received Exercise Proceeds Amount at the time such Restricted Payment is made;
(ix) so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, the Borrower may make other Restricted Payments in an aggregate amount not to exceed $10,000,000 in any Restricted fiscal year, beginning with the fiscal year ending December 31, 2016;
(x) the Borrower or any Subsidiary may make Restricted Payments from a payment of any dividend or distribution within 60 days after the Available Amount; provided that Restricted Payments date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement;
(xi) the Borrower or any Subsidiary may be make a purchase, repurchase, redemption, defeasance or other acquisition or retirement of preferred Equity Interests made by exchange (including any such exchange pursuant to clause the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the substantially concurrent sale of, preferred Equity Interests of the Borrower (a)(iother than Disqualified Stock and other than preferred Equity Interests sold to a Subsidiary) or a substantially concurrent contribution to the equity (other than through the issuance of Disqualified Stock or by preferred Equity Interests sold to any Subsidiary) of the definition Borrower;
(xii) the Borrower may make payments to holders of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as Equity Interests of the most recently ended fiscal quarter Borrower in lieu of the issuance of fractional shares of such Equity Interests, provided, however, that any such payment shall not be for which financial statements have been delivered pursuant the purpose of evading any limitation of this covenant or otherwise to Section 5.04(afacilitate any dividend or other return of capital to the holders of such Equity Interests (as determined in good faith by the board of directors of the Borrower);
(xiii) the Borrower or 5.04(b); and (vii) Holdings and Parent any Subsidiary may make purchases, repurchases, redemptions, defeasances or other acquisitions or retirements of Equity Interests deemed to occur upon the exercise of stock options, warrants or other rights in respect thereof if such Equity Interests represent a portion of the exercise price thereof; and
(xiv) the Borrower or any Subsidiary may pay dividends or other distributions of Equity Interests of, or Indebtedness owed to the Borrower or a Subsidiary by, Unrestricted Subsidiaries (unless the Unrestricted Subsidiary’s principal asset is cash or cash equivalents (including Permitted Tax DistributionsInvestments)).
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Borrower or any Restricted Subsidiary (other than any Permitted Joint Venture Subsidiary) to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations, or (ii) the ability of any Restricted Subsidiary (other than any Permitted Joint Venture Subsidiary) to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary Guarantor or to Guarantee Indebtedness of the Borrower or any other Restricted SubsidiarySubsidiary Guarantor; provided (x) that (A) the foregoing shall not apply to restrictions and conditions (A) imposed by law or by any Loan DocumentDocument or any Senior Note Indenture, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary or other assets pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary or assets that is are to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause imposed pursuant to other Indebtedness incurred pursuant to Section 6.01 with such encumbrances and restrictions that, taken as a whole, are not more restrictive than the terms hereof, (iE) of the foregoing shall not apply to restrictions or conditions imposed by contained in any agreement relating to secured Indebtedness permitted by this Agreement a Permitted Receivables Transaction if such restrictions or conditions encumbrances apply only to the property or assets securing relevant Permitted Receivables Transaction and are required pursuant to the terms and conditions of such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereofPermitted Receivables Transaction, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness on Permitted Joint Ventures or other joint ventures permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).under
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary of the Borrowers may declare and pay dividends or make other distributions ratably to its equity holdersholders (so long as, to the extent such Subsidiary is not a wholly owned Subsidiary, such dividends or distributions are made on a pro rata basis), (ii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsthe Borrowers or any Restricted Subsidiary may make distributions to Holdings so that Holdings may, Parent or the Borrower may repurchase its Equity Interests owned by its current or former directors, officers, employees or consultants of Holdings, the Borrowers or the Restricted Subsidiaries or any estate, family member of, or trust or other entity for the benefit of, any of the foregoing persons upon termination of employment, in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans, in connection with the exercise of rights by Holdings or any Restricted Subsidiary under any agreement with any such current or former directors, officers, employees or consultants or in connection with the death or disability of such current or former directors, officers, employees or consultants, in an aggregate amount for all such repurchases not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 1,000,000 in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that but not more than $5,000,000 in the amount expended in any fiscal year shall first be deemed to be from aggregate plus the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the cash proceeds of any key man life insurance policies received during such fiscal yearby the Borrowers after the Third Restatement Date less any amounts previously applied to the payment of Restricted Payments pursuant to this clause (a)(ii), (iii) so long as no Default Holdings, the Borrowers and each Restricted Subsidiary may declare and pay dividends payable solely in shares of common stock or Event other Qualified Capital Stock of Default shall have occurred and be continuing Holdings, the Borrowers or would result therefromsuch Restricted Subsidiary, (Aiv) Parent the Borrowers or any Restricted Subsidiary may make a Restricted Payment distributions to Holdings to allow so that Holdings to, and Holdings may, may purchase, redeem or otherwise repurchase, defease, acquire or retire for value Equity Interests the capital stock of HoldingsHoldings or options, Parent warrants or other rights to acquire such capital stock solely in exchange for, or out of the Borrower proceeds of the sale of (so long as such purchase, repurchase, redemption, defeasance, acquisition or retirement is consummated within 60 days of such sale) Qualified Capital Stock of Holdings or options, warrants or other rights to acquire such Qualified Capital Stock, (v) the Borrowers and each Restricted Subsidiary may purchase, repurchase, defease or retire for value the capital stock of Holdings or options, warrants or other rights to acquire such capital stock deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; rights to acquire such capital stock solely to the extent that shares or options, warrants or other rights to acquire such capital stock represent all or any portion of the exercise price of such options, warrants or other rights to acquire such capital stock, (ivvi) Parent may make a Restricted Payment the making of cash payments (or distributions to Holdings to allow permit such payments by Holdings) in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for equity interests of Holdings toshall be permitted, and Holdings may, (vii) the Borrowers or any Restricted Subsidiary may make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrowerto Holdings (v) to finance any Investment permitted to be made pursuant to Section 6.04; provided that (A) such Restricted Payment shall be made substantially concurrently with the amount closing of cash paid by Holdingssuch Investment and (B) such persons shall, Parent promptly following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower Borrowers or a Restricted Subsidiary or (2) the merger, amalgamation, consolidation or sale of all or substantially all assets (to the extent permitted in lieu of fractional Equity Interests Section 6.05) of the Borrower shall not exceed $500,000 person formed or acquired into the Borrowers or a Restricted Subsidiary in order to consummate such Investment, in each case, in accordance with the aggregaterequirements of Section 5.12 and Section 6.04; (vw) Parent the proceeds of which shall be used by Holdings to pay costs, fees and expenses related to any equity or debt offering permitted by this Agreement (whether or not successful); (x) to the extent necessary to pay general corporate and overhead expenses incurred by Holdings (including legal, accounting and filing costs), (y) to the extent necessary to pay fees and expenses and (z) in an amount necessary to pay the Tax liabilities of Holdings directly attributable to (or arising as a result of) the operations or income of the Borrowers and the Restricted Subsidiaries; (viii) the Borrowers and the Restricted Subsidiaries may make a additional Restricted payment Payments, in an amount not to Holdings exceed the Available Basket Amount immediately prior to allow Holdings tothe time such Restricted Payment is paid, and Holdings may, make the 2014 Distribution on the Closing Dateshall be permitted; provided that (vix) so long as no Default or Event of Default shall have has occurred and be is continuing at the time of any such Restricted Payment or would result therefrom and (y) the Total Net Leverage Ratio would not exceed 4.75 to 1.00 calculated on a pro forma basis after giving effect to such Restricted Payment tested Pro Forma Basis as of the last day of the most recently ended fiscal quarter Test Period for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b(b), as applicable, prior to the date of the execution of the definitive agreement governing such Restricted Payment shall not exceed 2.50 to 1.00; (ix) the Borrowers and the Restricted Subsidiaries may make additional Restricted Payments in an amount not exceeding 6.0% per annum of the Net Cash Proceeds that Holdings, Parentthe Borrowers and its Subsidiaries actually received as a result of the consummation of the Acquisition and not used to pay the Acquisition Consideration or the transaction costs related to the Acquisition; provided that such amount shall automatically increase in any year by the amount of Restricted Payments permitted, but not made, pursuant to this clause (ix) for any prior year or years since the Borrower and any Restricted Subsidiary Closing Date; (x) the Borrowers may make Restricted Payments to Holdings the proceeds of which shall be used by Holdings to repurchase Equity Interests of Holdings from the Available AmountInvestors in an aggregate amount not to exceed $35,000,000; provided that (i) Holdings, the Borrowers and Restricted Payments may Subsidiaries shall be made pursuant to clause (a)(i) in compliance with Section 6.10 as of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as last day of the most recently ended fiscal quarter Test Period for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b(b); , as applicable, prior to the date of such Restricted Payment, (ii) the Liquidity Amount shall be greater than $75,000,000 and (viiiii) Holdings no Default or Event of Default has occurred and Parent is continuing at the time of any such Restricted Payment or would result therefrom; (xi) the Borrowers and the Restricted Subsidiaries may make Permitted Tax Distributionsany Restricted Payment within 60 days after the date of declaration thereof, if at the date of such declaration such Restricted Payment would have complied with another provision of this Section 6.06; provided that the making of such Restricted Payment will reduce capacity for Restricted Payments pursuant to such other provision when so made; (xii) the Borrowers and the Restricted Subsidiaries may make additional Restricted Payments with any cash received by Holdings, which is contributed as common equity to the U.S. Borrower, as the exercise price in connection with an exercise of warrants or options with respect to Equity Interests of Holdings by the holders of such warrants or options; (xiii) to the extent constituting Restricted Payments, the Borrowers and the Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.04, 6.05 or 6.07; (xiv) payments made or expected to be made by the Borrowers or any Restricted Subsidiary (or distributions to Holdings to permit such payments by Holdings) in respect of withholding, employment or similar taxes payable by any current or former directors, officers, employees or consultants and any repurchases of Equity Interests deemed to occur upon exercise, vesting or settlement of, or payment with respect to, any equity or equity-based award, including, without limitation, stock or other equity options, stock or other equity appreciation rights, warrants, restricted equity units, restricted equity, deferred equity units or similar rights if such Equity Interests are used by the holder of such award to pay a portion of the exercise price of such options, appreciation rights, warrants or similar rights or to satisfy any required withholding or similar taxes with respect to any such award and (xv) in addition to Restricted Payments permitted by paragraphs (i) through (xiv) above, additional Restricted Payments by the Borrowers and the Restricted Subsidiaries so long as the aggregate amount of such Restricted Payments pursuant to this paragraph (xiv) does not exceed the greater of $15,000,000 and 30% of Consolidated EBITDA (calculated as of the most recent date for which financial statements have been furnished pursuant to Section 5.04(a) or (b)), at the time made.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Borrowers or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations, or (ii) the ability of any Restricted Subsidiary of the Borrowers that is not a Loan Party to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower Borrowers or any other Restricted Subsidiary Loan Party or to Guarantee Indebtedness of the Borrower Borrowers or any other Restricted SubsidiaryLoan Party; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law any Requirement of Law or by any Loan DocumentDocument or documentation relating to Incremental Equivalent Debt, the Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt or Permitted Unsecured Refinancing Debt, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary or assets pending such sale, ; provided that such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder[reserved], (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting subleasing or the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant any agreement relating to the Security Documentssale of any property permitted under this Agreement pending the consummation of such sale, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and or conditions contained in agreements arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred by Section 6.01 if such restrictions or conditions taken as a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant whole are no more onerous to the Security DocumentsBorrowers or the Restricted Subsidiaries than the terms of this Agreement, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to any agreement or instrument governing Indebtedness assumed in connection with the acquisition of assets by the Borrowers or any Restricted Subsidiary permitted hereunder or secured by a Lien encumbering assets acquired in connection therewith, which encumbrance or restriction is not applicable to any person, or the properties of any person, other than the person or the properties or assets of the person so acquired as long as such agreement or instrument was not entered into in contemplation of the acquisition of such assets, the foregoing shall not apply to any restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business, (J) the foregoing shall not apply to any provisions in joint venture agreements (relating solely to the respective joint venture) entered into in the ordinary course of business, (K) the foregoing shall not apply to customary non-assignment provisions in leases, contracts, licenses and conditions other agreements, (L) the foregoing shall not apply to any agreement in effect on at the Closing Date as shown on Schedule 3.10 (and any renewaltime a person becomes a Restricted Subsidiary of the Borrowers, extension or replacement therefor so long as such renewalagreement was not entered into in connection with or in contemplation of such person becoming a Restricted Subsidiary of the Borrowers, extension which encumbrance or replacement does restriction is not expand applicable to the scope properties or assets of any applicable Loan Party, other than the Restricted Subsidiary, or the property or assets of the Restricted Subsidiary, so acquired, (M) the foregoing shall not apply to customary restrictions that arise in connection with any Lien permitted by Section 6.02 or any document in connection therewith provided that such restriction relates only to the property subject to such Lien (and any proceeds and products thereof) and (N) the foregoing shall not apply to restrictions or condition)conditions arising pursuant to an agreement, instrument or guarantee provided in connection with any Vessel Financing.
Appears in 1 contract
Samples: Credit Agreement (Lindblad Expeditions Holdings, Inc.)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) Holdings may, provided that no Default or Event of Default has occurred and is continuing, declare and pay dividends or other distributions to holders of its Equity
(A) in an aggregate amount not to exceed $10,000,000 if after giving effect to such payment or repurchase, the Borrower covenants set forth in Sections 6.11 and 6.12 would be satisfied on a pro forma basis and (B) in an aggregate amount at any Restricted time not to exceed the Retained Excess Cash Flow Amount at such time if after giving effect to such payment or repurchase on a pro forma basis, the Net Leverage Ratio would not be in excess of 1.
90:1. 00, (ii) any Subsidiary may declare and pay dividends or make other distributions ratably (or in a manner more favorable to the Borrower or the Loan Parties) to its equity holders, (iiiii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsthe Borrower may, Parent or the Borrower may make distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by its employees of Holdings, the Borrower or the Subsidiaries or make payments to employees of Holdings, the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 5,000,000 in any fiscal year shall be permitted less the aggregate amount of Restricted Payments made pursuant to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year clause (without giving effect to any amounts carried over from prior fiscal yearsv) and then from the amount carried over to such fiscal year plus (Bof this Section 6.06(a) the proceeds of any key man life insurance received during such fiscal year, (iiiiv) the Borrower may make Restricted Payments to Holdings at any time (x) in an amount as may be necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) for so long as no Default Holdings files tax returns on a consolidated or Event combined basis with the Borrower and its Subsidiaries, in an amount necessary to pay such consolidated or combined Tax liabilities of Default shall have occurred Holdings (or its direct or indirect parent entity) which are allocable or attributable to (or arising as a result of) the operations of the Borrower and be continuing or would result therefromthe Subsidiaries; provided, however, that (A) Parent the amount of such dividends shall not exceed the amount that the Borrower and the Subsidiaries would be required to pay in respect of United States Federal, State and local taxes were the Borrower and the Subsidiaries to file their own consolidated or combined group and (B) all Restricted Payments made to Holdings (or its direct or indirect parent entity) pursuant to this clause (iv) are used by Holdings (or its direct or indirect parent entity) for the purposes specified herein within 20 days of the receipt thereof and (v) Holdings, the Borrower and the Subsidiaries may make a up to $5,000,000 of Restricted Payment Payments in any fiscal year to Holdings to allow Holdings totheir directors, and Holdings mayofficers or employees in connection with directors’ qualifying shares, purchaseincentive shares, redeem management or otherwise acquire employee compensation, stock option or retire for value other benefit plans permitted hereunder, including non-cash repurchases of Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent options if such Equity Interests represent a portion of the exercise or exchange purchase price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock such options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(ba) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary or Joint Venture to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law law, by the HPUC Decision and Order or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, Indebtedness and (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsthe Borrower may, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders make distributions to Holdings so that Holdings may (w) make Restricted Payments in an aggregate amount not to exceed $10,000,000, (x) in the event of a Special Disposition, make Restricted Payments in an aggregate amount not to exceed the sum Net Cash Proceeds of such Special Disposition less the Special Prepayment Amount in respect of such Special Disposition, (Ay) $2,000,000 during any fiscal year; provided that any unused amounts in if at the end of any fiscal year shall be permitted the Leverage Ratio was less than 3.0 to be carried over 1.0 and the Senior Leverage Ratio was less than 1.25 to subsequent fiscal years; provided that 1.0, make Restricted Payments during the amount expended in any following fiscal year shall first be deemed in an aggregate amount not to be from exceed 50% of Excess Cash Flow for the amount allocated to such fiscal year (without then ended so long as, after giving effect to any amounts carried over from prior fiscal yearssuch Restricted Payment, the Leverage Ratio would be less than 3.0 to 1.0 and the Senior Leverage Ratio would be less than 1.25 to 1.0 and (z) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value repurchase its Equity Interests owned by employees of Holdings, Parent the Borrower or the Subsidiaries or make payments to employees of Holdings, the Borrower deemed to occur or the Subsidiaries upon termination of employment in connection with the exercise of stock options, warrantsstock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed $8,000,000 in any fiscal year, rights of which the aggregate amount paid to acquire Equity Interests any one such employee (or other convertible securities estate of such employee) shall not exceed $4,000,000, (iii) the Borrower may make Restricted Payments or make loans and advances to Holdings (x) in an amount not to exceed $250,000 in any fiscal year, to the extent such Equity Interests represent necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to make Tax Payments directly attributable to (or arising as a portion result of) the operations of the exercise or exchange price thereof Borrower and the Subsidiaries; provided, however, that (A) the amount of such dividends shall not exceed the amount that the Borrower and the Subsidiaries would be required to pay in respect of Federal, State and local taxes were the Borrower to pay such taxes as a stand-alone taxpayer and (B) Parent all Restricted Payments made to Holdings pursuant to this clause (iii) are used by Holdings for the purposes specified herein within 30 days of the receipt thereof, (iv) the Borrower may, or the Borrower may make a Restricted Payment distributions to Holdings to allow Holdings to, and so that Holdings may, purchase, redeem or otherwise pay the Closing Date Dividend and (v) the Borrower may acquire or retire for value all of the Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid Tahoe Joe's not currently owned by Holdings, Parent or the Borrower in lieu accordance with the provisions of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b6.04(g), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations or any refinancing thereof, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness Indebtedness, Capital Lease Obligations or Synthetic Lease Obligations permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, Indebtedness or subject to such lease and (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
Samples: Credit Agreement (Buffets Inc)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that that:
(i) the Borrower and any Restricted Subsidiary of the Lead Borrower may declare and pay dividends or make other distributions ratably to its equity holders, ,
(ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsthe Lead Borrower may, Parent or the Lead Borrower may make distributions to Holdings (and Holdings may in turn make distributions to Super Holdco) so that Holdings (or Super Holdco) may, repurchase its Equity Interests owned by its current and former officers, directors, consultants, advisors or employees of Super Holdco, Holdings, the Borrowers or the Borrowers’ respective Restricted Subsidiaries or make payments to current and former officers, directors, consultants, advisors or employees of Super Holdco, Holdings, the Borrowers or the Borrowers’ respective Restricted Subsidiaries (x) in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to any management incentive plan, equity based compensation plan, equity subscription agreement, equity award agreement, shareholders’ or members’ agreement or other similar agreement, plan or arrangement, or (y) in connection with the retention, promotion, separation from service, death or disability of such individuals, in an aggregate amount for this clause (ii) not to exceed $7,500,000 in any fiscal year,
(iii) the Lead Borrower may make Restricted Payments to Holdings (and Holdings may in turn make Restricted Payments to Super Holdco) in order to allow Holdings and/or Super Holdco to (x) pay Holdings and/or Super Holdco’s administrative expenses and corporate overhead, franchise fees, public company costs (including SEC fees and auditing fees) and customary director fees in an aggregate amount not to exceed $3,000,000 in any calendar year, (y) pay premiums and deductibles in respect of directors and officers insurance policies and excess liability policies obtained from third-party insurers, (z) pay Tax liabilities attributable to Holdings and its subsidiaries in an amount not to exceed the sum amount of such taxes that would be payable by Holdings and its subsidiaries on a stand-alone basis (if Holdings were a corporation and parent of a consolidated group including its subsidiaries), provided that (A) $2,000,000 during any fiscal year; provided that any unused amounts payments made pursuant to this clause (z) in any fiscal year period that are not otherwise deducted in calculating Consolidated Net Income shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended deducted in any fiscal year calculating Consolidated Net Income for such period (and shall first be deemed to be from the amount allocated to a provision for taxes for purposes of calculating Excess Cash Flow for such fiscal year (without giving effect to any amounts carried over from prior fiscal yearsperiod) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, all Restricted Payments made to Super Holdco or Holdings pursuant to this clause (iii) shall be used by Super Holdco or Holdings, as the case may be, for the purposes specified herein within 20 days of the receipt thereof,
(iv) the Borrowers and each of their respective Restricted Subsidiaries may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issuance of new common Equity Interests of such Person (other than any such issuance to the Borrowers or their respective Restricted Subsidiaries),
(v) Holdings, the Borrowers and the Borrowers’ respective Restricted Subsidiaries may make repurchases of Equity Interests in Holdings (or any direct or indirect parent thereof), the Borrowers or any of the Borrowers’ respective Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represents a portion of the exercise price of such options or warrants,
(vi) the Borrowers or any of their respective Restricted Subsidiaries may make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Borrowers or such Restricted Subsidiaries or in connection with any Permitted Acquisition,
(vii) the Lead Borrower may make Restricted Payments to Holdings (and Holdings may in turn make such Restricted Payments to Super Holdco) in an aggregate amount, when combined with the aggregate amount of distributions, payments, commitments to pay, redemptions, repurchases, retirements and acquisitions for consideration with respect to Junior Financing made pursuant to Section 6.09(b)(i)(1), not to exceed $50,000,000 in any fiscal year,
(viii) the Lead Borrower may make other Restricted Payments to Holdings (and Holdings may in turn make such Restricted Payments to Super Holdco) in an amount equal to the portion, if any, of the Available ECF Amount on such date that the Lead Borrower elects to apply to this paragraph, such election to be specified in a written notice of a Responsible Officer of the Lead Borrower calculating in reasonable detail the amount of Available ECF Amount immediately prior to such election and the amount thereof elected to be so long as applied and including reasonably detailed calculations required to demonstrate compliance with the Fixed Charge Coverage Ratio required by clause (B) below; provided, that (A) no Default or Event of Default shall have has occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be is continuing or would result therefrom and (B) the Total Leverage Fixed Charge Coverage Ratio at the time of the making of the applicable Restricted Payment, calculated on a Pro Forma Basis, would not exceed 4.75 be no less than 2.00 to 1.00 on a pro forma basis after giving effect as of the last day of the Test Period most recently ended prior to such Restricted Payment tested as of the most recently ended fiscal quarter for which the financial statements have been delivered pursuant to and certificates required by Section 5.04(a) or 5.04(b), Holdingsas the case may be, Parenthave been delivered, and
(ix) the Lead Borrower and any Restricted Subsidiary may make Restricted Payments to Holdings (and Holdings may in turn make such Restricted Payments to Super Holdco) from time to time in an amount sufficient to enable Super Holdco to fund each scheduled payment of the Available AmountRegular Cash Dividend; provided that Restricted Payments may be made pursuant to clause on the date of each such payment (a)(iA) no Default or Event of Default has occurred and is continuing or would result therefrom and (B) the Fixed Charge Coverage Ratio at the time of the definition making of Available Amount so long as the Total Leverage Ratio applicable Restricted Payment, calculated on a Pro Forma Basis, would not exceed 5.50 be no less than 2.00 to 1.00 on a pro forma basis after giving effect as of the last day of the Test Period most recently ended prior to such Restricted Payment tested as of the most recently ended fiscal quarter for which the financial statements have been delivered pursuant to and certificates required by Section 5.04(a) or 5.04(b), as the case may be, have been delivered; and provided further, that the Lead Borrower shall have delivered to the Administrative Agent prior to such Restricted Payment an officer’s certificate executed by a Responsible Officer of the Lead Borrower certifying to such officer’s knowledge, compliance with the requirements of this clause (viiix), including reasonably detailed calculations required to demonstrate compliance with the Fixed Charge Coverage Ratio required in clause (B) Holdings and Parent may make Permitted Tax Distributionsabove.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrowers or any of the Borrowers’ respective Restricted Subsidiary Subsidiaries to create, incur or permit to exist any Lien upon any of its or their property or assets, or (ii) the ability of any Restricted Subsidiary of the Lead Borrower to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower Borrowers or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower Borrowers or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, any ABL Document, any Senior Secured Notes Document, any New Senior Notes Document, the Existing Unsecured Notes, any documents relating to any New Incremental Notes, any documents relating to any Extension, any documents relating to any Permitted Ratio Debt, any Credit Agreement Refinancing Indebtedness and any Subordinated Indebtedness and any refinancing of any of the foregoing, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, hereunder and (D) clause (i) of the foregoing shall not apply to (w) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (Ex) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, thereof,(y) restrictions and conditions existing on the Closing Date and identified on Schedule 6.06 (F) clause (i) of the foregoing but shall not apply to customary any amendment or modification expanding the scope of any such restriction or condition) and (z) restrictions and conditions contained in contractual obligations governing documents relating to Indebtedness permitted to be incurred pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition6.01(j).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare No Group Member will declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary of Holdco’s Subsidiaries may declare and pay dividends or make other distributions ratably to its equity holders, (ii) beginning on July 1, 2008 and except during a Trigger Period, so long as no Default shall have occurred and be continuing or would result therefrom, Holdco may, or may make distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by employees, officers, directors or consultants of Holdings, Holdco or the Subsidiaries or make payments to employees, officers, directors or consultants of Holdings, Holdco or the Subsidiaries in connection with the exercise of stock options (including for purposes of paying tax withholding applicable to stock option exercises), stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death, disability, retirement or termination of such employees in an amount not to exceed $50,000,000 in aggregate (plus the amount of Net Cash Proceeds (x) received by Holdco subsequent to the ABL Closing Date from sales of Equity Interests of Holdco or, to the extent contributed to Holdco, any of Holdco direct or indirect parents, to directors, consultants, officers or employees of Holdco, any of its Subsidiaries or any direct or indirect parent of Holdco in connection with permitted employee compensation and incentive arrangements and (y) of any key-man life insurance policies received by Holdco or its Subsidiaries), (iii) Holdco may make Restricted Payments to Holdings (x) in an amount not to exceed, when taken together with the aggregate amount of all loans or advances made pursuant to Section 6.5(i) for such purposes, $1,000,000 in any fiscal year to the extent necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay Holdings Tax liabilities (in an assumed amount equal to the hypothetical tax liability of the holders of Equity Interests in Holdings, calculated at the maximum combined net Federal, State and local income tax rate applicable to any holder of an Equity Interest in Holdings, in respect of the net taxable income of the Holdco Group); provided that all Restricted Payments made to Holdings pursuant to clause (iii) shall be used by Holdings for the purpose specified herein within 25 days of the receipt thereof, (iv) Holdco may declare and pay dividends or make other distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; provided that such additional Equity Interests shall not have any mandatory redemption or similar provisions, (v) Holdings and its Subsidiaries may make non-cash repurchases of Equity Interests deemed to occur upon the exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants and (vi) any Group Member may make any Restricted Payment if both immediately before and immediately after giving effect thereto, (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders in an aggregate amount not to exceed the sum of and (A) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (By) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall First Priority Leverage Ratio does not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 2.25 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax DistributionsPro Forma Basis.
(b) Enter intoThe Borrower will not, incur and Holdco will not permit any of its Subsidiaries to, create or otherwise cause or permit to exist or become effective any agreement contractual encumbrance or other arrangement that prohibits, restricts or imposes any condition upon (i) restriction on the ability of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or Holdco to: (iii) the ability of any Restricted Subsidiary to pay dividends or make any other distributions with respect to any of its Equity Interests to any Group Member, (ii) pay any Indebtedness or other obligations owed to any Group Member, (iii) make or repay any loans or advances to the Borrower any Group Member; or (iv) transfer any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the its property or assets securing such Indebtednessto any Group Member, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereofeach case, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition)except for Permitted Restrictions.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (Tower International, Inc.)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that that
(i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, ,
(ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsthe Borrower may, Parent or the Borrower may make distributions to Holdings (and Holdings may in turn make distributions to Super Holdco) so that Holdings (or Super Holdco) may, repurchase its Equity Interests owned by its current and former officers, directors, consultants, advisors or employees of Holdings, the Borrower or the Subsidiaries or make payments to current and former officers, directors, consultants, advisors or employees of Holdings, the Borrower or the Subsidiaries (x) in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to any management incentive plan, equity based compensation plan, equity subscription agreement, equity award agreement, shareholders’ or members’ agreement or other similar agreement, plan or arrangement, or (y) in connection with the retention, promotion, separation from service, death or disability of such individuals, in an aggregate amount for this clause (ii) not to exceed $7,500,000 in any fiscal year,
(iii) the Borrower may make Restricted Payments to Holdings (and Holdings may in turn make Restricted Payments to Super Holdco) in order to allow Holdings and/or Super Holdco to (x) pay Holdings and/or Super Holdco’s administrative expenses and corporate overhead, franchise fees, public company costs (including SEC fees and auditing fees) and customary director fees in an aggregate amount not to exceed $2,000,000 in any calendar year, (y) pay premiums and deductibles in respect of directors and officers insurance policies and excess liability policies obtained from third-party insurers, (z) pay Tax liabilities attributable to Holdings and its subsidiaries in an amount not to exceed the sum amount of such taxes that would be payable by Holdings and its subsidiaries on a stand-alone basis (if Holdings were a corporation and parent of a consolidated group including its subsidiaries), provided that (A) $2,000,000 during any fiscal year; provided that any unused amounts payments made pursuant to this clause (z) in any fiscal year period that are not otherwise deducted in calculating Consolidated Net Income shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended deducted in any fiscal year calculating Consolidated Net Income for such period (and shall first be deemed to be from the amount allocated to a provision for taxes for purposes of calculating Excess Cash Flow for such fiscal year (without giving effect to any amounts carried over from prior fiscal yearsperiod) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, all Restricted Payments made to Super Holdco or Holdings pursuant to this clause (iii) so long shall be used by Super Holdco or Holdings, as no Default or Event the case may be, for the purposes specified herein within 20 days of Default shall have occurred the receipt thereof,
(iv) the Borrower and be continuing or would result therefrom, (A) Parent each of its Subsidiaries may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value its common Equity Interests with the proceeds received from the substantially concurrent issuance of new common Equity Interests of Holdings, Parent or such Person (other than any such issuance to the Borrower deemed to occur upon or a Subsidiary),
(v) the Borrower may make cash payments in lieu of issuing fractional shares in connection with the exercise of stock options, warrants, rights to acquire Equity Interests options or other securities convertible securities to the extent such Equity Interests represent a portion of the exercise into or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire exchangeable for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings toor its Subsidiaries, and Holdings may, make the 2014 Distribution on the Closing Date; and
(vi) so long as no Default or Event of Default shall have occurred the Borrower may make other Restricted Payments to Holdings (and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to Holdings may in turn make such Restricted Payment tested as Payments to Super Holdco) in an aggregate amount, when combined with the aggregate amount of the most recently ended fiscal quarter distributions, payments, commitments to pay, redemptions, repurchases, retirements and acquisitions for which financial statements have been delivered consideration with respect to subordinated Indebtedness made pursuant to Section 5.04(a) or 5.04(b6.09(b)(i)(A)(1), Holdings, Parent, the Borrower and not to exceed $40,000,000 in any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributionsyear.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, any ABL Document, any Senior Secured Note Document or any Subordinated Note Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, hereunder and (D) clause (i) of the foregoing shall not apply to (x) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (Ey) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, thereof and (Fz) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect existing on the Closing Date as shown and identified on Schedule 3.10 6.06 (and but shall apply to any renewal, extension amendment or replacement therefor so long as such renewal, extension or replacement does not expand modification expanding the scope of any applicable such restriction or condition).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that except:
(i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, ;
(ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests (or the Equity Interests of any parent company thereof) owned by its employees of the Borrower (or any parent company thereof) or the Subsidiaries or make payments to employees of the Borrower (or any parent company thereof) or the Subsidiaries in connection with the exercise or vesting of stock options, stock appreciation rights, restricted stock units, restricted stock or similar equity holders incentives or equity based incentives or in connection with the death, termination or disability of such employees in an aggregate amount not to exceed the sum of (A) $2,000,000 during 1,000,000 in any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that ;
(iii) the amount expended in any fiscal year shall first be deemed to be from Borrower and the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) Subsidiaries may make Restricted Payments, the proceeds of any key man life insurance received during which will be used to pay operating costs and expenses of a parent entity incurred in the ordinary course of business that are solely attributable to the operations of the Borrower and its Subsidiaries;
(iv) the Borrower and the Subsidiaries may declare and make dividend payments or other distributions to its parents, in each case, payable solely in the Equity Interests of such fiscal year, Person that are not Disqualified Stock;
(iiiv) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent the Borrower may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests shares of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire its Equity Interests or its parents (in each case, other convertible securities than Disqualified Stock) or warrants or options to acquire any such shares, in each case, with the extent such proceeds received from the substantially concurrent issue of new shares of its Equity Interests represent a portion (other than Disqualified Stock);
(vi) the Borrower may enter into Permitted Call Spread Agreements and deliver shares of common stock of the exercise Borrower, pay or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings todeliver cash, and Holdings mayor any combination thereof, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise the settlement, unwinding or exchange termination of stock options, warrants or other similar rights; Permitted Call Spread Agreements;
(ivvii) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary the Subsidiaries may make Restricted Payments from the Available AmountTax Distributions; provided that and
(viii) Restricted Payments may be made pursuant to clause (a)(i) pay in cash, in lieu of the definition issuance of Available Amount so long as fractional shares, upon the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as exercise of warrants or upon the conversion or exchange of Equity Interests of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax DistributionsBorrower.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law law, regulation or order of any Governmental Authority or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) the foregoing shall not apply to any agreement in effect at the time any Subsidiary becomes a Subsidiary of the Borrower, so long as such agreement was not entered into in connection with or in contemplation of such person becoming a Subsidiary of the Borrower and such agreement does not extend to the Borrower or any other Subsidiary, (G) sub-clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations documents governing secured Indebtedness expressly permitted pursuant to Section 6.01(b)by this Agreement, (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on imposed under the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope terms of any agreement entered into in connection with any Receivables Program; provided that such restrictions and conditions apply only to a Receivables Subsidiary and (I) the foregoing shall not apply to customary provisions in Joint Venture agreements and other similar agreements applicable restriction or condition)to Joint Ventures permitted hereunder, applicable solely to the applicable Joint Venture and entered into in the ordinary course of business.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare No Group Member will declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary of Holdco’s Subsidiaries may declare and pay dividends or make other distributions ratably to its equity holders, (ii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, HoldingsHoldco may, Parent or the Borrower may make distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by its employees, officers, directors or consultants of Holdings, Holdco or the Subsidiaries or make payments to employees, officers, directors or consultants of Holdings, Holdco or the Subsidiaries in connection with the exercise of stock options (including for purposes of paying tax withholding applicable to stock option exercises), stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death, disability, retirement or termination of such employees in an aggregate amount not to exceed $65,000,000 in aggregate (plus the sum amount of Net Cash Proceeds (Ax) received by Holdco subsequent to April 23, 2013 from sales of Equity Interests of Holdco or, to the extent contributed to Holdco, any of Holdco’s direct or indirect parents, to directors, consultants, officers or employees of Holdco, any of its Subsidiaries or any direct or indirect parent of Holdco in connection with permitted employee compensation and incentive arrangements and (y) of any key-man life insurance policies received by Holdco or its Subsidiaries), (iii) Holdco may make Restricted Payments to Holdings (x) in an amount not to exceed, when taken together with the aggregate amount of all loans or advances made pursuant to Section 6.05(i) for such purposes, $2,000,000 during any fiscal year; provided that any unused amounts 1,000,000 in any fiscal year shall be permitted to be carried over the extent necessary to subsequent fiscal yearspay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay Holdings’ Tax liabilities (in an assumed amount equal to the hypothetical tax liability of the holders of Equity Interests in Holdings, calculated at the maximum combined net Federal, State and local income tax rate applicable to any holder of an Equity Interest in Holdings, in respect of the net taxable income of the Holdco Group); provided that the amount expended in any fiscal year shall first be deemed all Restricted Payments made to be from the amount allocated Holdings pursuant to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, clause (iii) so long as shall be used by Holdings for the purpose specified herein within 25 days of the receipt thereof, (iv) Holdco may declare and pay dividends or make other distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; provided that such additional Equity Interests shall not have any mandatory redemption or similar provisions, (v) Holdings and its Subsidiaries may make non-cash repurchases of Equity Interests deemed to occur upon the exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants, (vi) any Group Member may make Restricted Payments if (x) both immediately before and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (Ay) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon Total Net Leverage Ratio measured at the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion time of the exercise making of any such Restricted Payment, but immediately after giving effect thereto and determined on a Pro Forma Basis after giving effect thereto, is equal to or exchange price thereof less than 1.25 to 1.00 and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vivii) so long as (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (y) the Total Leverage Ratio would not exceed 4.75 to 1.00 Borrower is in compliance, on a pro forma basis after giving effect to such Restricted Payment tested Pro Forma Basis, with the covenant set forth in Section 6.11 recomputed as of the last day of the most recently ended fiscal quarter for which financial statements are required to have been delivered pursuant to Section 5.04(a) or 5.04(b)5.01, Holdings, Parent, the Borrower and any Restricted Subsidiary Group Member may make Restricted Payments from the Available Amount; provided in an aggregate amount that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would does not exceed 5.50 the Applicable Amount as in effect immediately prior to 1.00 on a pro forma basis after giving effect to the time of making of such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax DistributionsPayment.
(b) Enter intoThe Borrower will not, incur and Holdco will not permit any of its Subsidiaries to, create or otherwise cause or permit to exist or become effective any agreement contractual encumbrance or other arrangement that prohibits, restricts or imposes any condition upon (i) restriction on the ability of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or Holdco to: (iii) the ability of any Restricted Subsidiary to pay dividends or make any other distributions with respect to any of its Equity Interests to any Group Member, (ii) pay any Indebtedness or other obligations owed to any Group Member, (iii) make or repay any loans or advances to the Borrower any Group Member; or (iv) transfer any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the its property or assets securing such Indebtednessto any Group Member, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereofeach case, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition)except for Permitted Restrictions.
Appears in 1 contract
Samples: Term Loan and Guaranty Agreement (Tower International, Inc.)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, Make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that that:
(i) the Borrower and any each Restricted Subsidiary may declare make Restricted Payments to the Administrative Borrower, any other Restricted Subsidiary, or any other Person that owns a direct Equity Interest in such Restricted Subsidiary, ratably according to their respective holdings of the type, class or ranking of Equity Interest in respect of which such Restricted Payment is being made or in a manner more favorable to the BorrowerBorrowers and pay dividends or make other distributions ratably to its equity holders, the Restricted Subsidiaries;
(ii) so long as the Administrative Borrower may make Restricted Payments from Available Cash to the extent that (x) no Default or Event of Default shall have has occurred and be is continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would immediately result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis (y) immediately before and after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, ParentPayment, the Administrative Borrower’s Interest Coverage Ratio is greater than or equal to 2.25:1.00;
(iii) the Administrative Borrower and any each Restricted Subsidiary may declare and make Restricted Payments from dividend payments or other distributions payable solely in preferred, common or subordinated Equity Interests of such Person(s) and the Available AmountAdministrative Borrower may issue common Equity Interests upon conversion of subordinated or preferred Equity Interests; provided that (1) the BorrowerBorrowers may not issue any general partnership interests to any Person other than the General Partner and (2) any such Equity Interests issued pursuant to this clause (iii) are not Disqualified Stock;
(iv) Restricted Payments may be made pursuant to clause (a)(i) in the form of the definition issuance of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as Equity Interests of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) Administrative Borrower in connection with the cashless exercise of options, warrants, conversion and other rights or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions tax withholding with respect to any the exercise of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness equity based awards under employee equity incentive compensation programs of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan DocumentBorrowerBorrowers, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold Subsidiaries, the General Partner and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) management Affiliate of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).General Partner;
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions distributions, including in the form of additional Equity Interests, ratably to its equity holders, (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may, or may pay dividends or make other distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by its employees of Holdings, the Borrower or the Subsidiaries or make payments to employees of Holdings, the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees or make customary and reasonable salary and bonus and other benefits payments to officers, employees and consultants of Holdings or payments of customary fees and expenses of members of the board of directors of Holdings in an aggregate amount for this clause (ii) not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 1,500,000 in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided (it being agreed that the any such amount expended not utilized in any fiscal year shall first may be deemed to be from the amount allocated to such carried forward and utilized in any subsequent fiscal year so long as the aggregate amount of such repurchases or payments pursuant to this clause (without giving effect to ii) shall not exceed $3,000,000 in any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year), (iii) the Borrower may make Restricted Payments to Holdings (x) in an amount not to exceed, when taken together with the aggregate amount of all loans or advances made pursuant to Section 6.04(i) for such purpose, $1,000,000 in any fiscal year to the extent necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay the Tax liabilities of Holdings directly attributable to (or arising as a result of) the operations of the Borrower and the Subsidiaries pursuant to the Tax Sharing Agreement, as such agreement exists on the Closing Date and with such changes after the Closing Date as may be approved by the Administrative Agent; provided that all Restricted Payments made to Holdings pursuant to clause (iii) shall be used by Holdings for the purpose specified herein within 20 days of the receipt thereof, (iv) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent the Borrower may pay dividends or make a Restricted Payment other distributions to Holdings to allow so that Holdings tomay pay those fees, costs and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests expenses that are expressly permitted by clause (c) of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof Section 6.07 and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom therefrom, the Borrower may make Restricted Payments to Holdings, and Holdings may, in turn, make such Restricted Payments to its equity holders so long as (A) the Total Leverage Ratio would not exceed 4.75 be 3.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested or less as of the most recently ended fiscal quarter completed period ending prior to such transaction for which the financial statements have been delivered pursuant to and certificates required by Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may ) were required to be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter delivered or for which comparable financial statements have been delivered pursuant filed with or furnished to Section 5.04(a) or 5.04(b); the Securities and Exchange Commission, after giving pro forma effect to such transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such transaction had occurred as of the first day of such period and (viiB) Holdings at the time of, after giving effect to, such transaction, there shall be at least $7,500,000 of unused and Parent may make Permitted Tax Distributionsavailable Revolving Credit Commitments under and as defined in the First Lien Credit Agreement.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary or its assets pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary or its assets that is are to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary that is not a Loan Party by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions restrictions or conditions imposed by the Subordinated Note Documents as in leases and other contracts restricting effect on the assignment thereofClosing Date, (F) clause (i) of the foregoing shall not apply to customary restrictions provisions in leases and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict other contracts restricting the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; assignment thereof and (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on imposed by the Closing Date as shown on Schedule 3.10 First Lien Loan Documents with respect to any First Lien Indebtedness (and or any renewal, extension or replacement therefor so long as refinancing of such renewal, extension or replacement does not expand the scope of any applicable restriction or conditionFirst Lien Indebtedness that is permitted hereunder).
Appears in 1 contract
Samples: Second Lien Credit Agreement (True Temper Sports Inc)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, Make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that that:
(i) each Restricted Subsidiary may make Restricted Payments to the Administrative Borrower, any other Restricted Subsidiary, or any other Person that owns a direct Equity Interest in such Restricted Subsidiary, ratably according to their respective holdings of the type, class or ranking of Equity Interest in respect of which such Restricted Payment is being made or in a manner more favorable to the Borrowers and the Restricted Subsidiaries;
(ii) the Administrative Borrower may make Restricted Payments from Available Cash to the extent that (x) no Event of Default has occurred and is continuing or would immediately result therefrom and (y) immediately before and after giving effect to such Restricted Payment, the Administrative Borrower’s Interest Coverage Ratio is greater than or equal to 2.25:1.00;
(iii) the Administrative Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in preferred, common or subordinated Equity Interests of such Person(s) and the Administrative Borrower may issue common Equity Interests upon conversion of subordinated or preferred Equity Interests; provided that (1) the Borrowers may not issue any general partnership interests to any Person other than the General Partner and (2) any such Equity Interests issued pursuant to this clause (iii) are not Disqualified Stock;
(iv) Restricted Payments may be made in the form of the issuance of Equity Interests of the Administrative Borrower in connection with the cashless exercise of options, warrants, conversion and other rights or tax withholding with respect to the exercise of equity based awards under employee equity incentive compensation programs of the Borrowers, and the Restricted Subsidiaries, the General Partner and any management Affiliate of the General Partner;
(v) (x) the Borrowers and each Restricted Subsidiary may repurchase, redeem or otherwise acquire any Equity Interests of the Administrative Borrower or any Restricted Subsidiary held by any current or former officer, director, consultant or employee of the Borrowers, and the Restricted Subsidiaries, the General Partner and any management Affiliate of the General Partner pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or partnership agreement or similar agreement, plan or arrangement or any Plan and the Borrowers and each Restricted Subsidiary may declare and pay dividends to the Borrowers or any other Restricted Subsidiary the proceeds of which are used for such purposes and (y) to the extent such payments are deemed to be Restricted Payments, the Administrative Borrower may make payments under stock appreciation rights, phantom stock or other distributions ratably similar cash settled interests issued under the Administrative Borrower’s long term incentive programs in effect from time to its equity holderstime; provided that, immediately before and immediately after making any Restricted Payment pursuant to this clause (iiv) so long as and after giving pro forma effect thereto, the Administrative Borrower shall be in Financial Covenant Compliance and no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or continuing;
(vi) the Administrative Borrower may repurchase its make the Closing Date Distribution;
(vii) repurchases of Equity Interests owned by its equity holders in an aggregate amount not deemed to exceed occur upon the sum exercise of (A) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year stock options or warrants shall be permitted to be carried over to subsequent fiscal years; provided that the extent the value of such Equity Interests represents all or a portion of the purchase price of such options or warrants, in an amount expended in not exceeding $1,000,000 during any fiscal year shall first be deemed (pro-rated for partial years, with unused amounts being available to be from used in the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such following fiscal year, but not in any succeeding fiscal year);
(iiiviii) the Administrative Borrower may make Restricted Payments in cash in lieu of the issuance of fractional shares upon the exercise of warrants or upon the conversion or exchange of Equity Interests of the Administrative Borrower;
(ix) in addition to Restricted Payments permitted by clauses (i) through (viii) above, additional Restricted Payments may be made by the Administrative Borrower or any Restricted Subsidiary so long as (x) the amount of Restricted Payments made pursuant to this clause (ix) does not exceed an amount equal to the Available Amount at the time such Restricted Payment is made, (y) both immediately before and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (z) other than with regard to Restricted Payments made with proceeds arising from clauseclauses (i)(x) or would result therefrom(y) of the definition of Available Amount, as of the date of such Restricted Payment, the Total Leverage Ratio (Aafter giving pro forma effect to such Restricted Payment) Parent shall be less than or equal to 3.50:1.00; and
(x) the Administrative Borrower may make a any Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or previously declared by the Administrative Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion that, as of the exercise or exchange price thereof and (B) Parent may make a date of declaration, such Restricted Payment to Holdings to allow Holdings towas permitted under clause (ii), and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings toor (ix) above, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default under paragraphs (b), (c), (g) or (h) of Article VII shall have occurred and be continuing or would result therefrom and at the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to time of such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax DistributionsPayment.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of the Administrative Borrower or any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets that would otherwise constitute Collateral to secure the Obligations, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or Interests, to make or repay loans or advances to the Administrative Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or transfer property to any other Restricted SubsidiaryBorrower; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or law, by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary or other assets pending such salesale or other disposition, provided such restrictions and conditions apply only to the Restricted Subsidiary or other assets that is are to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement documentation relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such IndebtednessSection 6.01(a), (Ed), (e), (g) clause and (i) (solely in respect of guarantees of other Indebtedness permitted under Section 6.01(a), (d), (e) and (g)) in each case, to the extent limited to the assets subject to Liens securing such Indebtedness (D) the foregoing shall not apply to customary provisions in leases leases, licenses and other contracts restricting the assignment thereofthereof,(E) the foregoing shall not apply to customary provisions in joint venture agreements or agreements governing property held with a common owner and other similar agreements or arrangements relating solely to such joint venture or property, (F) the foregoing shall not apply to restrictions or conditions imposed by applicable Law and (G) clause (iii) of the foregoing shall not apply to customary restrictions and or conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition)Project Finance Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Enviva Inc.)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that that
(i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, ,
(ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsthe Borrower may, Parent or the Borrower may make distributions to Holdings (and Holdings may in turn make distributions to Super Holdco) so that Holdings (or Super Holdco) may, repurchase its Equity Interests owned by its current and former officers, directors, consultants, advisors or employees of Holdings, the Borrower or the Subsidiaries or make payments to current and former officers, directors, consultants, advisors or employees of Holdings, the Borrower or the Subsidiaries (x) in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to any management incentive plan, equity based compensation plan, equity subscription agreement, equity award agreement, shareholders’ or members’ agreement or other similar agreement, plan or arrangement, or (y) in connection with the retention, promotion, separation from service, death or disability of such individuals, in an aggregate amount for this clause (ii) not to exceed $7,500,000 in any fiscal year,
(iii) the Borrower may make Restricted Payments to Holdings (and Holdings may in turn make Restricted Payments to Super Holdco) in order to allow Holdings and/or Super Holdco to (x) pay Holdings and/or Super Holdco’s administrative expenses and corporate overhead, franchise fees, public company costs (including SEC fees and auditing fees) and customary director fees in an aggregate amount not to exceed $2,000,000 in any calendar year, (y) pay premiums and deductibles in respect of directors and officers insurance policies and excess liability policies obtained from third-party insurers, (z) pay Tax liabilities attributable to Holdings and its subsidiaries in an amount not to exceed the sum amount of such taxes that would be payable by Holdings and its subsidiaries on a stand-alone basis (if Holdings were a corporation and parent of a consolidated group including its subsidiaries), provided that (A) $2,000,000 during any fiscal year; provided that any unused amounts payments made pursuant to this clause (z) in any fiscal year period that are not otherwise deducted in calculating Consolidated Net Income shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended deducted in any fiscal year calculating Consolidated Net Income for such period (and shall first be deemed to be from the amount allocated to a provision for taxes for purposes of calculating Excess Cash Flow for such fiscal year (without giving effect to any amounts carried over from prior fiscal yearsperiod) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, all Restricted Payments made to Super Holdco or Holdings pursuant to this clause (iii) so long shall be used by Super Holdco or Holdings, as no Default or Event the case may be, for the purposes specified herein within 20 days of Default shall have occurred the receipt thereof,
(iv) the Borrower and be continuing or would result therefrom, (A) Parent each of its Subsidiaries may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value its common Equity Interests with the proceeds received from the substantially concurrent issuance of new common Equity Interests of Holdings, Parent or such Person (other than any such issuance to the Borrower deemed to occur upon or a Subsidiary),
(v) the Borrower may make cash payments in lieu of issuing fractional shares in connection with the exercise of stock options, warrants, rights to acquire Equity Interests options or other securities convertible securities to the extent such Equity Interests represent a portion of the exercise into or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire exchangeable for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings toor its Subsidiaries, and Holdings may, make the 2014 Distribution on the Closing Date; and
(vi) so long as no Default or Event of Default shall have occurred the Borrower may make other Restricted Payments to Holdings (and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to Holdings may in turn make such Restricted Payment tested as of the most recently ended Payments to Super Holdco) in an aggregate amount not to exceed $40,000,000 in any fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributionsyear.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, any ABL Document, any Senior Secured Note Document or any Subordinated Note Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, hereunder and (D) clause (i) of the foregoing shall not apply to (x) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (Ey) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, thereof and (Fz) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens existing on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; date hereof and identified on Schedule 6.06 (G) the foregoing clause (i) but shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights any amendment or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand modification expanding the scope of any applicable such restriction or condition).
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holdersholders of a given class, (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the U.S.Parent Borrower may repurchase its Equity Interests owned by its employees of the U.S.Parent Borrower or the Subsidiaries or make payments to employees of the U.S.Parent Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed the sum of U.S.$10,000,000 in any fiscal year, and (iii) at any time on or after January 1, 2016, so long as (A) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds no Event of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (AB) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion at least U.S.$25,000,000 of the exercise or exchange price thereof Revolving Commitments is unused and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis available after giving effect to such Restricted Payment tested Payment, and (C) the U.S.Parent Borrower would (1) be in compliance with the covenants set forth in Sections 6.10 and 6.11(2) have a Leverage Ratio less than 3.50:1.00, in each case as of the most recently ended completed period of four consecutive fiscal quarter quarters ending prior to such transaction for which the financial statements have been delivered pursuant to required by Section 5.04(a) or 5.04(b) have been delivered or for which comparable financial statements have been filed with the SEC, after giving pro forma effect (using the criteria therefor described in Section 6.04(i), Holdings, Parent) to such transaction and to any other event occurring during or after such period as to which pro forma recalculation is appropriate as if such transaction had occurred as of the first day of such period, the U.S.Parent Borrower and any Restricted Subsidiary and, with respect to the Exchangeable Shares, Civeo Holdco (with funds advanced by the U.S. Borrower) may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); in any amount and (viiiv) Holdings and Parent the U.S. Borrower may make Permitted Tax Distributionsa one-time distribution to Oil States on the Funding Date in an amount not to exceed U.S.$850,000,000.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the U.S.Parent Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets in favor of a Collateral Agent or any successor thereto hereunder or under any agreement that replaces or refinances this Agreement, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the U.S.Parent Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the U.S.Parent Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary (other than the Canadian BorrowersParent, Civeo Premium, any Canadian Subsidiary, the Australian Borrower or any Australian Subsidiary) by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, thereof and (F) clause (iii) of the foregoing shall not apply (solely as it relates to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (idividends) shall not apply to customary the restrictions and conditions contained in agreements relating to a merger on Civeo Holdco required by the terms of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions Exchangeable Shares as in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition)date hereof.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, Make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that that:
(i) the Borrower and any each Restricted Subsidiary may declare make Restricted Payments to the Administrative Borrower, any other Restricted Subsidiary, or any other Person that owns a direct Equity Interest in such Restricted Subsidiary, ratably according to their respective holdings of the type, class or ranking of Equity Interest in respect of which such Restricted Payment is being made or in a manner more favorable to the Borrowers and pay dividends or make other distributions ratably to its equity holders, the Restricted Subsidiaries;
(ii) so long as the Administrative Borrower may make Restricted Payments from Available Cash to the extent that (x) no Default or Event of Default shall have has occurred and be is continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would immediately result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis (y) immediately before and after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, ParentPayment, the Administrative Borrower’s Interest Coverage Ratio is greater than or equal to 2.25:1.00;
(iii) the Administrative Borrower and any each Restricted Subsidiary may declare and make Restricted Payments from dividend payments or other distributions payable solely in preferred, common or subordinated Equity Interests of such Person(s) and the Available AmountAdministrative Borrower may issue common Equity Interests upon conversion of subordinated or preferred Equity Interests; provided that (1) the Borrowers may not issue any general partnership interests to any Person other than the General Partner and (2) any such Equity Interests issued pursuant to this clause (iii) are not Disqualified Stock;
(iv) Restricted Payments may be made pursuant to clause (a)(i) in the form of the definition issuance of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as Equity Interests of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) Administrative Borrower in connection with the cashless exercise of options, warrants, conversion and other rights or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions tax withholding with respect to any the exercise of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness equity based awards under employee equity incentive compensation programs of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan DocumentBorrowers, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold Subsidiaries, the General Partner and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) management Affiliate of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).General Partner;
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare No Group Member will declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary of Holdco’s Subsidiaries may declare and pay dividends or make other distributions ratably to its equity holders, (ii) beginning on July 1, 2008 and except during a Liquidity Trigger Period, so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, HoldingsHoldco may, Parent or the Borrower may make distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by its employees, officers, directors or consultants of Holdings, Holdco or the Subsidiaries or make payments to employees, officers, directors or consultants of Holdings, Holdco or the Subsidiaries in connection with the exercise of stock options (including for purposes of paying tax withholding applicable to stock option exercises), stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death, disability, retirement or termination of such employees in an aggregate amount not to exceed $50,000,000 in aggregate (plus the sum amount of Net Cash Proceeds (Ax) received by Holdco subsequent to the Closing Date from sales of Equity Interests of Holdco or, to the extent contributed to Holdco, any of Holdco direct or indirect parents, to directors, consultants, officers or employees of Holdco, any of its Subsidiaries or any direct or indirect parent of Holdco in connection with permitted employee compensation and incentive arrangements and (y) of any key-man life insurance policies received by Holdco or its Subsidiaries), (iii) Holdco may make Restricted Payments to Holdings (x) in an amount not to exceed, when taken together with the aggregate amount of all loans or advances made pursuant to Section 6.05(i) for such purposes, $2,000,000 during any fiscal year; provided that any unused amounts 1,000,000 in any fiscal year shall be permitted to be carried over the extent necessary to subsequent fiscal yearspay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay Holdings Tax liabilities (in an assumed amount equal to the hypothetical tax liability of the holders of Equity Interests in Holdings, calculated at the maximum combined net Federal, State and local income tax rate applicable to any holder of an Equity Interest in Holdings, in respect of the net taxable income of the Holdco Group); provided that the amount expended in any fiscal year shall first be deemed all Restricted Payments made to be from the amount allocated Holdings pursuant to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, clause (iii) so long as shall be used by Holdings for the purpose specified herein within 25 days of the receipt thereof, (iv) Holdco may declare and pay dividends or make other distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; provided that such additional Equity Interests shall not have any mandatory redemption or similar provisions, (v) Holdings and its Subsidiaries may make non-cash repurchases of Equity Interests deemed to occur upon the exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants and (vi) any Group Member may make any Restricted Payment if both immediately before and immediately after giving effect thereto, (x) no Default or Event of Default shall have occurred and be continuing or would result therefromcontinuing, (Ay) Parent may make a Restricted Payment to Holdings to allow Holdings toNet Domestic Availability, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or calculated on the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion basis of the exercise or exchange price thereof Borrowing Base Certificate most recently delivered but adjusted to give effect thereto, is not less than the product of (1) the Total Revolving Credit Commitment and (B2) Parent may make a Restricted Payment to Holdings to allow Holdings to, 15% and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or (z) the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall First Priority Leverage Ratio does not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 2.25 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax DistributionsPro Forma Basis.
(b) Enter intoThe Borrower will not, incur and Holdco will not permit any of its Subsidiaries to, create or otherwise cause or permit to exist or become effective any agreement contractual encumbrance or other arrangement that prohibits, restricts or imposes any condition upon (i) restriction on the ability of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or Holdco to: (iii) the ability of any Restricted Subsidiary to pay dividends or make any other distributions with respect to any of its Equity Interests to any Group Member, (ii) pay any Indebtedness or other obligations owed to any Group Member, (iii) make or repay any loans or advances to the Borrower any Group Member; or (iv) transfer any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the its property or assets securing such Indebtednessto any Group Member, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereofeach case, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition)except for Permitted Restrictions.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Tower International, Inc.)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to No Loan Party shall declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that provided that:
(i) the Borrower (A) Loan Parties (other than Ultimate Parent and any Restricted Subsidiary LLC Parent) may declare and pay dividends or make other distributions ratably to its their equity holders, holders and (B) LLC Parent may declare and pay dividends or make other distributions to Ultimate Parent and any other Borrowers that are managing members of LLC Parent);
(ii) so long as no Default Loan Parties may acquire shares of Ultimate Parent delivered or Event to be delivered to a director, officer or employee of Default shall have occurred a Loan Party in connection with the grant, vesting, exercise or payment of a stock option, warrant or other equity or equity-based award granted by a Loan Party and be continuing the Loan Parties may make distributions in order to satisfy the exercise or would result therefrompurchase price of the award and/or any Tax withholding obligations arising in connection with such event;
(iii) Loan Parties may make Restricted Payments to any Parent Company to permit such Parent Company, Holdingsand the subsequent use of such payments by such Parent Company, Parent to repurchase or redeem the Borrower may repurchase its Equity Interests or Equity Equivalents of Ultimate Parent and LLC Parent owned by its former or current management, directors, officers or employees (or their transferees, estates or beneficiaries under their estates) of any Loan Party or to make payments (including on promissory notes issued to pay the purchase price) with respect to such repurchases or redemptions upon death, disability, retirement, severance or termination of employment or service or pursuant to any employee, management or director equity holders plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock subscription or shareholder agreement) or similar equity incentives or equity-based incentives in an aggregate amount not to exceed the sum $4,000,000 in any Fiscal Year;
(iv) Loan Parties may make payments of customary fees to members of its or any Parent Company’s board of directors and in respect of insurance coverage or for indemnification obligations under any law, indenture, contract or agreement to any director or officer of any Loan Party;
(v) [reserved];
(vi) [reserved];
(vii) Loan Parties may make Restricted Payments
(A) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year shall be not otherwise permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal yearunder this Section 8.6(a), provided, that, (iiix) so long as no Default or Event of Default shall have has occurred and be is continuing or would result therefrom, (A) Parent may make a from such Restricted Payment to Holdings to allow Holdings to(y) Ultimate Parent and its Subsidiaries (other than Non-Borrower Subsidiaries) shall be in compliance with each Financial Condition Covenant, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests (z) the Consolidated Total Leverage Ratio of Holdings, Ultimate Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower its Subsidiaries shall not exceed $500,000 the lesser of (1) 1.85:1.0 and (2) the then-applicable level set forth in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings toSection 5.4 reduced by 1.0:1:0, and Holdings mayin each case, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 calculated on a pro forma basis after giving effect to such Restricted Payment tested Pro Forma Basis as of the most recently ended fiscal quarter completed period of four consecutive Fiscal Quarters ending prior to such transaction for which financial statements the quarterly and annual Financial Statements and Compliance Certificates have been delivered pursuant delivered, as if such transaction had occurred as of the first day of such period; and
(B) up to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided provided, that the Available Amount shall only be available for Restricted Payments may if, (x) Ultimate Parent and its Subsidiaries (other than Non-Borrower Subsidiaries) shall be in compliance with each Financial Condition Covenant and (y) Consolidated Total Leverage Ratio of Ultimate Parent and its Subsidiaries (other than Non-Borrower Subsidiaries) shall not exceed the lesser of (1) 1.85:1.0 and (2) the then-applicable level set forth in Section 5.4 reduced by 0.5:1:0, in each case, calculated on a Pro Forma Basis as of the most recently completed period of four consecutive Fiscal Quarters ending prior to such transaction for which the quarterly and annual Financial Statements and Compliance Certificates have been delivered, as if such transaction had occurred as of the first day of such period; provided that, notwithstanding the foregoing, no Restricted Payments shall be made pursuant to clause (a)(ivii) of this Section 8.6(a) if the definition aggregate amount of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as Payments, together with the aggregate amount of Restricted Payments previously made pursuant to clause (vii) of this Section 8.6(a), (x) during the most recently ended fiscal quarter completed period of four consecutive Fiscal Quarters for which financial statements the quarterly or annual Financial Statements, as the case may be, and a Compliance Certificate have been delivered pursuant to Section 5.04(a) or 5.04(b); and (viiy) Holdings after such recently completed period of four Fiscal Quarters, would exceed 90% of Free Cash Flow of Ultimate Parent and its Subsidiaries (other than Non-Borrower Subsidiaries) for such recently completed period of four consecutive Fiscal Quarters;
(viii) any Parent Company may make payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests or Equity Equivalents of Ultimate Parent and LLC Parent;
(ix) [reserved]; and
(x) LLC Parent may make Permitted pay cash distributions in respect of taxes owing by LLC Parent’s direct or indirect investors in respect of GHLLC and the other Borrowers (“Tax Distributions”).
(b) Enter No Loan Party shall enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations, or (ii) the ability of any Restricted Subsidiary of any Loan Party to pay dividends or other distributions with respect to any of its Equity Interests or Equity Equivalents or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary such Loan Party or to Guarantee guarantee Indebtedness of the Borrower or any other Restricted Subsidiarysuch Loan Party; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or regulations or by any Loan Document, the Term Loan Facility, the Skilled RE Loan Documents, any Material Master Lease entered into prior to the Closing Date, or such other Indebtedness as is set forth on Schedule 8.1, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary or any other permitted asset sale pending such sale, ; provided such restrictions and conditions apply only to the Restricted relevant Subsidiary or other asset that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary that is not a Loan Party by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness creating Liens permitted by this Agreement if such restrictions or conditions apply only to Section 8.2 prohibiting further Liens on the property or assets securing such Indebtednessproperties encumbered thereby, (E) clause (i) of the foregoing shall not apply to (x) customary provisions in leases Leases and other contracts restricting the subletting or assignment thereofthereof or (y) any Material Master Leases entered into after the Closing Date; provided, however, in each case, such restrictions shall not be more adverse to the Lenders and Borrowers than the equivalent restrictions set forth in these Material Master Leases existing as of the Closing Date, as modified by the Master Lease Intercreditor Agreements, (F) clause (i) of the foregoing shall not apply to customary restrictions provisions in joint venture agreements, partnership agreements, limited liability organizational governance documents, asset sale agreements, sale and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b)leaseback agreements and other similar agreements, (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided any other agreement that such limitations shall does not restrict the Loan Parties’ ability to grant liens on the Collateral in any manner (directly or indirectly) Liens created pursuant to the Security Documents, impair Loan Documents on any Collateral securing the rights Obligations and does not require the direct or benefits indirect granting of any Lien securing any Indebtedness or other obligation by virtue of the Secured Parties in granting of Liens on or pledge of property of any Collateral or otherwise impair Loan Party to secure the ability of the Loan Parties to perform their obligations under the Loan Documents; and Obligations, (H) the foregoing shall not apply to restrictions and conditions in any Indebtedness permitted pursuant to Section 8.1 to the extent such restrictions or conditions are no more restrictive than the restrictions and conditions in the Loan Documents, (I) the foregoing shall not apply to customary provisions restricting assignment of any agreement entered into by a Loan Party in the ordinary course of business, (J) the foregoing shall not apply to any agreement assumed in connection with any Permitted Acquisition, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired and (K) the foregoing shall not apply to restrictions and conditions that (x) exist in any agreement in effect on at the Closing Date as shown on Schedule 3.10 (and time any renewalPerson becomes a Loan Party, extension or replacement therefor so long as such renewalagreement was not entered into in contemplation of such Person becoming a Subsidiary, extension (y) is imposed by any amendments or replacement does not expand refinancings that are otherwise permitted by the scope Loan Documents of any applicable restriction the contracts, instruments or condition)obligations referred to above; provided that such amendments and refinancings are no more materially restrictive with respect to such prohibitions and limitations than those prior to such amendment or refinancing and such restrictions are limited solely to such Borrower.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions distributions, including in the form of additional Equity Interests, ratably to its equity holders, (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may, or may pay dividends or make other distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by its employees of Holdings, the Borrower or the Subsidiaries or make payments to employees of Holdings, the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees or make customary and reasonable salary and bonus and other benefits payments to officers, employees and consultants of Holdings or payments of customary fees and expenses of members of the board of directors of Holdings in an aggregate amount for this clause (ii) not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 1,500,000 in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided (it being agreed that the any such amount expended not utilized in any fiscal year shall first may be deemed to be from the amount allocated to such carried forward and utilized in any subsequent fiscal year so long as the aggregate amount of such repurchases or payments pursuant to this clause (without giving effect to ii) shall not exceed $3,000,000 in any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year), (iii) the Borrower may make Restricted Payments to Holdings (x) in an amount not to exceed, when taken together with the aggregate amount of all loans or advances made pursuant to Section 6.04(i) for such purpose, $1,000,000 in any fiscal year to the extent necessary to pay general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay the Tax liabilities of Holdings directly attributable to (or arising as a result of) the operations of the Borrower and the Subsidiaries pursuant to the Tax Sharing Agreement, as such agreement exists on the date hereof and with such changes after the date hereof as may be approved by the Administrative Agent; provided that all Restricted Payments made to Holdings pursuant to clause (iii) shall be used by Holdings for the purpose specified herein within 20 days of the receipt thereof, (iv) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent the Borrower may pay dividends or make a Restricted Payment other distributions to Holdings to allow so that Holdings tomay pay those fees, costs and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests expenses that are expressly permitted by clause (c) of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof Section 6.07 and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom therefrom, the Borrower may make Restricted Payments to Holdings, and Holdings may, in turn, make such Restricted Payments to its equity holders so long as (A) the Borrower would be in compliance with the covenants set forth in Sections 6.11 and 6.13 and the Total Leverage Ratio would not exceed 4.75 be 3.25 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested or less, in each case, as of the most recently ended fiscal quarter completed period ending prior to such transaction for which the financial statements have been delivered pursuant to and certificates required by Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may ) were required to be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter delivered or for which comparable financial statements have been delivered pursuant filed with or furnished to Section 5.04(a) or 5.04(b); the Securities and Exchange Commission, after giving pro forma effect to such transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such transaction had occurred as of the first day of such period and (viiB) Holdings at the time of, after giving effect to, such transaction, there shall be at least $7,500,000 of unused and Parent may make Permitted Tax Distributionsavailable Revolving Credit Commitments.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary or its assets pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary or its assets that is are to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary that is not a Loan Party by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions restrictions or conditions imposed by the Subordinated Note Documents as in leases effect on the date hereof and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions provisions in leases and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict other contracts restricting the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition)assignment thereof.
Appears in 1 contract
Samples: Credit Agreement (True Temper Sports PRC Holdings Inc)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that except
(i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, ;
(ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its employees of the Borrower or the Subsidiaries or make payments to employees of the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts 1,000,000 in any fiscal year shall be permitted to be carried over to subsequent fiscal years; (provided that for the amount expended in any stub fiscal year ended December 26, 2015, such aggregate amount shall first be deemed not exceed $666,667);
(iii) Restricted Payments from certain Asset Sale proceeds as contemplated by the second sentence of Section 2.13(a), in an amount not to be from exceed $50,000,000;
(iv) other Restricted Payments in an amount not to exceed the amount allocated Available Amount (subject to the absence of any Default and the Net Total Leverage Ratio not exceeding 2.50:1.00 on a Pro Forma Basis as of the last day of the most recently completed fiscal quarter ending prior to such fiscal year transaction for which the financial statements required by Section 5.04(a) or 5.04(b) have been delivered); and
(without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iiiv) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent the Borrower may make a Restricted Payment payments with respect to Holdings to allow Holdings to, the net settlement of option exercises and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise cash settlement of stock options, warrants, appreciation rights to acquire Equity Interests or other convertible securities pursuant to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and 2014 Incentive Plan in an aggregate amount not to exceed $1,000,000 in any fiscal year (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that for the stub fiscal year ended December 26, 2015, such aggregate amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b666,667), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to restrictions and conditions existing on the date hereof as set forth on Schedule 6.07(b) (including any extensions or renewals thereof), (C) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, ; provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (CD) the foregoing shall not apply to customary provisions in licenses and sub-licenses restricting the assignment thereof, (E) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (DF) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (EG) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions contained in the ABL Facility Documentation; (I) the foregoing shall not apply to any agreement or other instrument of a Person acquired by the Borrower or any Subsidiary which was in existence at the time of such acquisition (but not created in contemplation thereof or in connection therewith), which restriction or condition is not applicable to any Person or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the person and its Subsidiaries, so acquired; (J) the foregoing shall not apply to customary provisions in joint venture agreements, shareholder agreements and similar agreements applicable to joint ventures and other non-wholly owned entities; and (K) the foregoing shall not apply to any restrictions or conditions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or other obligations referred to in clauses (A) through (J) above, provided that the restrictions and conditions contained in such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Borrower no more restrictive than those restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any immediately prior to such amendment, modification, restatement, renewal, extension increase, supplement, refunding, replacement or replacement therefor so long as such renewalrefinancing under the applicable contract, extension instrument or replacement does not expand the scope of any applicable restriction or condition)other obligation.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that that:
(i) the Borrower and any Restricted Subsidiary of the Lead Borrower may declare and pay dividends or make other distributions ratably to its equity holders, ,
(ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsthe Lead Borrower may, Parent or the Lead Borrower may make distributions to Holdings (and Holdings may in turn make distributions to Super Holdco) so that Holdings (or Super Holdco) may, repurchase its Equity Interests owned by its current and former officers, directors, consultants, advisors or employees of Super Holdco, Holdings, the Borrowers or the Borrowers’ respective Restricted Subsidiaries or make payments to current and former officers, directors, consultants, advisors or employees of Super Holdco, Holdings, the Borrowers or the Borrowers’ respective Restricted Subsidiaries (x) in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to any management incentive plan, equity based compensation plan, equity subscription agreement, equity award agreement, shareholders’ or members’ agreement or other similar agreement, plan or arrangement, or (y) in connection with the retention, promotion, separation from service, death or disability of such individuals, in an aggregate amount for this clause (ii) not to exceed $7,500,000 in any fiscal year,
(iii) the Lead Borrower may make Restricted Payments to Holdings (and Holdings may in turn make Restricted Payments to Super Holdco) in order to allow Holdings and/or Super Holdco to (x) pay Holdings and/or Super Holdco’s administrative expenses and corporate overhead, franchise fees, public company costs (including SEC fees and auditing fees) and customary director fees in an aggregate amount not to exceed $3,000,000 in any calendar year, (y) pay premiums and deductibles in respect of directors and officers insurance policies and excess liability policies obtained from third-party insurers, (z) pay Tax liabilities attributable to Holdings and its subsidiaries in an amount not to exceed the sum amount of such taxes that would be payable by Holdings and its subsidiaries on a stand-alone basis (if Holdings were a corporation and parent of a consolidated group including its subsidiaries), provided that (A) $2,000,000 during any fiscal year; provided that any unused amounts payments made pursuant to this clause (z) in any fiscal year period that are not otherwise deducted in calculating Consolidated Net Income shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended deducted in any fiscal year calculating Consolidated Net Income for such period (and shall first be deemed to be from the amount allocated to a provision for taxes for purposes of calculating Excess Cash Flow for such fiscal year (without giving effect to any amounts carried over from prior fiscal yearsperiod) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, all Restricted Payments made to Super Holdco or Holdings pursuant to this clause (iii) shall be used by Super Holdco or Holdings, as the case may be, for the purposes specified herein within 20 days of the receipt thereof,
(iv) the Borrowers and each of their respective Restricted Subsidiaries may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issuance of new common Equity Interests of such Person (other than any such issuance to the Borrowers or their respective Restricted Subsidiaries),
(v) Holdings, the Borrowers and the Borrowers’ respective Restricted Subsidiaries may make repurchases of Equity Interests in Holdings (or any direct or indirect parent thereof), the Borrowers or any of the Borrowers’ respective Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represents a portion of the exercise price of such options or warrants,
(vi) the Borrowers or any of their respective Restricted Subsidiaries may make cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Borrowers or such Restricted Subsidiaries or in connection with any Permitted Acquisition,
(vii) the Lead Borrower may make Restricted Payments to Holdings (and Holdings may in turn make such Restricted Payments to Super Holdco) in an aggregate amount, when combined with the aggregate amount of distributions, payments, commitments to pay, redemptions, repurchases, retirements and acquisitions for consideration with respect to Junior Financing made pursuant to Section 6.09(b)(i)(1), not to exceed $50,000,000 in any fiscal year,
(viii) the Lead Borrower may make other Restricted Payments to Holdings (and Holdings may in turn make such Restricted Payments to Super Holdco) in an amount equal to the portion, if any, of the Available ECF Amount on such date that the Lead Borrower elects to apply to this paragraph, such election to be specified in a written notice of a Responsible Officer of the Lead Borrower calculating in reasonable detail the amount of Available ECF Amount immediately prior to such election and the amount thereof elected to be so long as applied and including reasonably detailed calculations required to demonstrate compliance with the Fixed Charge Coverage Ratio required by clause (B) below; provided, that (A) no Default or Event of Default shall have has occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be is continuing or would result therefrom and (B) the Total Leverage Fixed Charge Coverage Ratio at the time of the making of the applicable Restricted Payment, calculated on a Pro Forma Basis, would not exceed 4.75 be no less than 2.00 to 1.00 on a pro forma basis after giving effect as of the last day of the Test Period most recently ended prior to such Restricted Payment tested as of the most recently ended fiscal quarter for which the financial statements have been delivered pursuant to and certificates required by Section 5.04(a) or 5.04(b), Holdingsas the case may be, Parenthave been delivered, and
(ix) the Lead Borrower and any Restricted Subsidiary may make Restricted Payments to Holdings (and Holdings may in turn make such Restricted Payments to Super Holdco) from time to time in an amount sufficient to enable Super Holdco to fund each scheduled payment of the Available AmountRegular Cash Dividend; provided that Restricted Payments may be made pursuant to clause on the date of each such payment (a)(iA) no Default or Event of Default has occurred and is continuing or would result therefrom and (B) the Fixed Charge Coverage Ratio at the time of the definition making of Available Amount so long as the Total Leverage Ratio applicable Restricted Payment, calculated on a Pro Forma Basis, would not exceed 5.50 be no less than 2.00 to 1.00 on a pro forma basis after giving effect as of the last day of the Test Period most recently ended prior to such Restricted Payment tested as of the most recently ended fiscal quarter for which the financial statements have been delivered pursuant to and certificates required by Section 5.04(a) or 5.04(b), as the case may be, have been delivered; and provided, further, that the Lead Borrower shall have delivered to the Administrative Agent prior to such Restricted Payment an officer’s certificate executed by a Responsible Officer of the Lead Borrower certifying to such officer’s knowledge, compliance with the requirements of this clause (viiix), including reasonably detailed calculations required to demonstrate compliance with the Fixed Charge Coverage Ratio required in clause (B) Holdings and Parent may make Permitted Tax Distributionsabove.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrowers or any of the Borrowers’ respective Restricted Subsidiary Subsidiaries to create, incur or permit to exist any Lien upon any of its or their property or assets, or (ii) the ability of any Restricted Subsidiary of the Lead Borrower to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower Borrowers or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower Borrowers or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, any ABL Document, any New Senior Notes Document, the Existing Unsecured Notes, any documents relating to any New Incremental Notes, any documents relating to any Extension, any documents relating to any Permitted Ratio Debt, any Credit Agreement Refinancing Indebtedness and any Subordinated Indebtedness and any refinancing of any of the foregoing, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, hereunder and (D) clause (i) of the foregoing shall not apply to (w) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (Ex) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, thereof,(y) restrictions and conditions existing on the First Restatement Effective Date and identified on Schedule 6.06 (F) clause (i) of the foregoing but shall not apply to customary any amendment or modification expanding the scope of any such restriction or condition) and (z) restrictions and conditions contained in contractual obligations governing documents relating to Indebtedness permitted to be incurred pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition6.01(j).
Appears in 1 contract
Samples: First Amendment and Restatement Agreement (Spectrum Brands, Inc.)
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, Make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that that:
(i) each Restricted Subsidiary may make Restricted Payments to the Borrower, any other Restricted Subsidiary, or 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 or in a manner more favorable to the Borrower and any the Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, Subsidiaries;
(ii) so long as solely after the consummation of the IPO, the Borrower may make Restricted Payments from Available Cash to the extent that (x) no Default or Event of Default shall have has occurred and be is continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would immediately result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis (y) immediately before and after giving effect to such Restricted Payment tested as of Payment, the most recently ended fiscal quarter for which financial statements have been delivered pursuant Borrower’s Interest Coverage Ratio is greater than or equal to Section 5.04(a2.25:1.00;
(iii) or 5.04(b), Holdings, Parent, the Borrower and any each Restricted Subsidiary may declare and make Restricted Payments from dividend payments or other distributions payable solely in preferred, common or subordinated Equity Interests of such Person(s) and the Available AmountBorrower may issue common Equity Interests upon conversion of subordinated or preferred Equity Interests; provided that (1) the Borrower may not issue any general partnership interests to any Person other than the General Partner and (2) any such Equity Interests issued pursuant to this clause (iii) are not Disqualified Stock;
(iv) Restricted Payments may be made pursuant to clause (a)(i) in the form of the definition issuance of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as Equity Interests of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) Borrower in connection with the cashless exercise of options, warrants, conversion and other rights or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions tax withholding with respect to any the exercise of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness equity based awards under employee equity incentive compensation programs of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan DocumentBorrower, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold Subsidiaries, the General Partner and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) management Affiliate of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).General Partner;
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur Payment (including pursuant to any obligation (contingent or otherwise) to do soSynthetic Purchase Agreement); providedPROVIDED, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, HoldingsHoldings or the Borrower may, Parent or the Borrower may make distributions to Holdings so that Holdings may, repurchase its Equity Interests owned by its equity holders in an current or former consultants, officers, directors or employees (or their respective Family Group members) of Holdings, the Borrower or the Subsidiaries upon termination of employment or make payments with respect to Management Notes, PROVIDED that the aggregate amount of cash payments made to repurchase such Equity Interests or on account of such Management Notes shall not to exceed (x) in each of the sum of fiscal years commencing on or about January 28, 2001 and January 27, 2002, $2,000,000, and (Ay) $2,000,000 during any fiscal year; provided that any unused amounts in any each fiscal year shall be permitted to be carried over to subsequent thereafter, $3,000,000, plus, in each case, all amounts not used from each prior fiscal years; provided that year commencing after the Closing Date, plus the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance proceeds received during such fiscal yearby Holdings or the Borrower, (iii) so long the Borrower may make Restricted Payments to Holdings (x) in an amount not to exceed $250,000 in any fiscal year, to the extent necessary to pay general corporate and overhead and operating expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay the Tax liabilities of Holdings directly attributable to (or arising as no Default or Event a result of) the operations of Default shall have occurred the Borrower and be continuing or would result therefromthe Subsidiaries; PROVIDED, HOWEVER, that (A) Parent may make a the amount of such dividends shall not exceed the amount that the Borrower and the Subsidiaries would be required to pay in respect of Federal, State and local taxes were the Borrower and the Subsidiaries to pay such taxes as stand-alone taxpayers and (B) all Restricted Payment Payments made to Holdings pursuant to allow this clause (iii) are used by Holdings tofor the purposes specified herein within 30 days of the receipt thereof and (iv) the Recapitalization and dividends to make any payments required to be made pursuant to the Recapitalization Documents shall be permitted, and Holdings may, purchase, redeem or otherwise acquire or retire for value (v) noncash repurchases of Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests options or other convertible securities warrants to the extent such Equity Interests represent that the value thereof represents all or a portion of the exercise or exchange price thereof shall be permitted and (Bvi) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value repurchases of Equity Interests of Holdings, Parent or Holdings with the Borrower made in lieu proceeds of withholding taxes in connection with any exercise or exchange a substantially concurrent issuance of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower Holdings shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributionspermitted.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party Holdings, the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations and any refinancing thereof, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided PROVIDED that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided PROVIDED such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to leases, licenses, secured Indebtedness or other Liens permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such IndebtednessIndebtedness or subject to such lease, license or Lien, (E) clause (i) of the foregoing shall not apply to customary provisions Indebtedness permitted to be outstanding under Section 6.01(a) or 6.01(e) (and Refinancing Indebtedness in leases respect thereof), PROVIDED that such restrictions and other contracts restricting conditions are not made materially more onerous than they are on the assignment Closing Date (or, in the case of Section 6.01(e), the date of incurrence thereof), (F) clauses (i) and (ii) of the foregoing shall not apply to Indebtedness incurred under Section 6.01(k), PROVIDED that such restrictions and conditions are no more onerous than those contained herein, and (G) clause (i) of the foregoing shall not apply to customary restrictions provisions in leases and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict other contracts restricting the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition)assignment thereof.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that that:
(i) the Borrower and any Restricted Subsidiary Company may declare and pay dividends make Restricted Payments to the Borrower or make other distributions ratably to its equity holders, any wholly owned Subsidiary of the Borrower;
(ii) so long as no Default to the extent constituting Restricted Payments, any Company may take actions expressly permitted by Section 6.03 (other than Section 6.03(d)); and
(iii) any Company may declare and make Restricted Payments:
(1) the proceeds of which will be used to repurchase, retire or Event otherwise acquire the Equity Interests of Default shall have occurred and be continuing or would result therefrom, Holdings, Parent or the Borrower may repurchase its Equity Interests owned by its equity holders in an aggregate amount from directors, officers, employees or members of management consultants or independent contractors (or their estate, family trust, family members, spouse, civil partner and/or former spouse or civil partner) of any Company not to exceed the sum of $11,500,000 in any calendar year, (A) $2,000,000 during any fiscal year; provided that any unused amounts in not used during any fiscal calendar year shall be permitted to may be carried over to subsequent fiscal years; provided that and used in the amount expended in any fiscal year immediately following calendar year, but shall first be deemed to be from used last in such immediately following calendar year); provided further that the amount allocated to such fiscal year amounts set forth in this clause (without giving effect to any amounts carried over from prior fiscal years1) and then from the amount carried over to such fiscal year plus (B) may be further increased by the proceeds of any key man life insurance received during by the Loan Parties (solely with respect to the calendar year in which such fiscal year, proceeds are received and without limiting any carry over thereof permitted above); or
(iii2) so long as no Default or Event constituting repurchases of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the any parent holding company of Borrower deemed to occur upon the noncash exercise of stock optionsoptions and warrants or similar equity incentive awards;
(iv) the Borrower may make Restricted Payments solely in the form of Qualified Capital Stock;
(v) any Company may (i) pay cash in lieu of fractional shares in connection with any dividend, warrantssplit or combination of its Equity Interests or any Permitted Acquisition (or similar Investment) and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion;
(vi) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 6.05;
(vii) [reserved];
(viii) the Borrower may redeem in whole or in part any Equity Interests of the Borrower in exchange for another class of Equity Interests constituting Qualified Capital Stock or rights to acquire Equity Interests constituting Qualified Capital Stock or other convertible securities to the extent such Equity Interests represent a portion with proceeds from substantially concurrent equity contributions or issuances of the exercise or exchange price thereof and new shares of its Qualified Capital Stock;
(Bix) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu an amount equal to withholding or similar taxes payable or expected to be payable by any present or former employee, director, officer, manager, consultant or independent contractor (or their respective Affiliates, estates or immediate family members) and any repurchases of fractional Equity Interests in consideration of Holdingssuch payments including deemed repurchases in connection with the exercise of stock options or grant, Parent vesting or the Borrowerdelivery of any Equity Interests; provided that the aggregate amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower Restricted Payments (other than deemed repurchases made for no value) pursuant to this Section 6.05(a)(ix) shall not exceed $500,000 2,300,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as any fiscal year of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(aBorrower; and
(x) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would in an aggregate amount not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered exceeding, together with any Investments pursuant to Section 5.04(a6.03(p) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributions.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability repayments of any Loan Party or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted Junior Debt pursuant to Section 6.01(b6.06(b)(iii), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits aggregate amount of the Secured Parties in any Collateral or otherwise impair the ability net cash proceeds of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger issuance of Qualified Capital Stock actually received by the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; from and (H) the foregoing shall not apply to restrictions and conditions in effect on after the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition)Date.
Appears in 1 contract
Samples: Second Lien Term Loan Agreement
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holdersholders of a given class, (ii) so long as no Event of Default or Event of Default shall have occurred and be continuing or -146- would result therefrom, Holdings, the Parent or the Borrower may repurchase its Equity Interests owned by its employees of the Parent Borrower or the Subsidiaries or make payments to employees of the Parent Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed the sum of (A) $2,000,000 during any fiscal year; provided that any unused amounts U.S.$10,000,000 in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (without giving effect to any amounts carried over from prior fiscal years) and then from the amount carried over to such fiscal year plus (B) the proceeds of any key man life insurance received during such fiscal year, (iii) so long as (A) no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, (AB) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion at least U.S.$40,000,000 of the exercise or exchange price thereof Revolving Commitments is unused and (B) Parent may make a available after giving effect to such Restricted Payment to Holdings to allow Holdings toPayment, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests which at least $30,000,000 must be comprised20,000,000 of the Borrower shall not exceed $500,000 Canadian Revolving Commitments and the U.S. Revolving Commitments unused and available, in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, is unused and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Total Leverage Ratio would not exceed 4.75 to 1.00 on a pro forma basis available after giving effect to such Restricted Payment tested and (C) the Parent Borrower would have a Total Net Leverage Ratio less than 2.502.75:1.00 as of the most recently ended completed period of four consecutive fiscal quarter quarters ending prior to such transaction for which the financial statements have been delivered pursuant to required by Section 5.04(a) or 5.04(b) have been delivered or for which comparable financial statements have been filed with the SEC, after giving pro forma effect (using the criteria therefor described in Section 6.04(i), Holdings, Parent) to such transaction and to any other event occurring during or after such period as to which pro forma recalculation is appropriate as if such transaction had occurred as of the first day of such period, the Parent Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 on a pro forma basis after giving effect to such Restricted Payment tested as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); and (vii) Holdings and Parent may make Permitted Tax Distributionsin any amount.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Parent Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets in favor of a Collateral Agent or any successor thereto hereunder or under any agreement that replaces or refinances this Agreement, or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Parent Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Parent Borrower or any other Restricted Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary (other than any Canadian Subsidiary, the Australian Borrower or any Australian Subsidiary) by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, thereof and (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on imposed pursuant to the Closing Date as shown on Schedule 3.10 (and any renewal, extension Facility Letter or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition)other agreements for Banking Services permitted hereunder.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment, or incur Payment (including pursuant to any obligation (contingent or otherwise) to do soSynthetic Purchase Agreement); provided, however, that that:
(i) the Borrower and any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, ;
(ii) [reserved];
(iii) so long as no Event of Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdingsand subject to compliance with the RP Leverage Condition, Parent or the Borrower may repurchase its (or send up a distribution to allow a parent company to repurchase its) respective Equity Interests owned by its current or former employees, directors or consultants of Holdings, the Borrower or the Subsidiaries (or any parent company) or make payments to employees, directors or consultants of Holdings, the Borrower or the Subsidiaries (or any parent company) in connection with the exercise of stock options, stock appreciation rights or similar equity holders incentives or equity based incentives pursuant to management incentive plans, in an aggregate amount not to exceed the sum of (A) $2,000,000 during 10,000,000 in any fiscal year; provided that any unused amounts in any fiscal year shall be permitted to be carried over to subsequent fiscal years; provided that the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year ;
(without giving effect to any amounts carried over from prior fiscal yearsiv) and then from the amount carried over to such fiscal year plus [reserved];
(Bv) [reserved];
(vi) the proceeds of any key man life insurance received during such fiscal yearBorrower may net shares under employee benefits plans to settle option price payments owed by employees and directors with respect thereto and to settle employees’ and directors’ Federal, state and income tax liabilities (iiiif any) related thereto;
(vii) so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (iv) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may, make Restricted Payments in cash in lieu of fractional Equity Interests of Holdings, Parent or the Borrower; provided that the amount of cash paid by Holdings, Parent or the Borrower in lieu of fractional Equity Interests of the Borrower shall not exceed $500,000 in the aggregate; (v) Parent may make a Restricted payment to Holdings to allow Holdings to, and Holdings may, make the 2014 Distribution on the Closing Date; (vi) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the Total time of and after giving effect thereto, the Secured Net Leverage Ratio would not exceed 4.75 to 1.00 for the most recent Test Period on a pro forma basis shall not be greater than 4.25 to 1.00, the Borrower may make other Restricted Payments in an amount not to exceed the Available Amount at the time such Restricted Payment is made;
(viii) payments, dividends or distributions to finance payments permitted by Section 6.7(vi);
(ix) so long as (A) no Event of Default or Default shall have occurred and be continuing, or would result therefrom and (B) at the time of and after giving effect to such Restricted Payment tested as of thereto, the Secured Net Leverage Ratio for the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), Holdings, Parent, the Borrower and any Restricted Subsidiary may make Restricted Payments from the Available Amount; provided that Restricted Payments may be made pursuant to clause (a)(i) of the definition of Available Amount so long as the Total Leverage Ratio would not exceed 5.50 to 1.00 recent Test Period on a pro forma basis shall not be greater than 3.00 to 1.00, the Borrower may make other Restricted Payments;
(x) the Borrower or any Subsidiary may make a payment of any dividend or distribution within 60 days after giving effect the date of declaration thereof, if at the date of declaration such payment would have complied with the RP Leverage Condition and all other provisions of this Agreement;
(xi) subject to compliance with the RP Leverage Condition, the Borrower or any Subsidiary may make a purchase, repurchase, redemption, defeasance or other acquisition or retirement of preferred Equity Interests made by exchange (including any such Restricted Payment tested as exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the most recently ended fiscal quarter for which financial statements have been delivered pursuant issuance of fractional shares) for, or out of the proceeds of the substantially concurrent (and in any event, within 60 days) sale of, preferred Equity Interests of Holdings or the Borrower (other than Disqualified Stock and other than preferred Equity Interests sold to Section 5.04(aa Subsidiary) or 5.04(b); a substantially concurrent (and in any event, within 60 days) contribution to the equity (viiother than through the issuance of Disqualified Stock or by preferred Equity Interests sold to any Subsidiary) of Holdings and Parent or the Borrower;
(xii) the Borrower may make Permitted Tax Distributionspayments to holders of Equity Interests of Holdings (or any parent company) or the Borrower in lieu of the issuance of fractional shares of such Equity Interests, provided, however, that any such payment shall not be for the purpose of evading any limitation of this covenant or otherwise to facilitate any dividend or other return of capital to the holders of such Equity Interests (as determined in good faith by the board of directors of the Borrower);
(xiii) the Borrower or any Subsidiary may make purchases, repurchases, redemptions, defeasances or other acquisitions or retirements of Equity Interests deemed to occur upon the exercise of stock options, warrants or other rights in respect thereof if such Equity Interests represent a portion of the exercise price thereof; and
(xiv) payments, dividends or distributions to the extent that such payment, dividend or distribution is made with issuances of or the cash proceeds from the issuance of Equity Interests after the Closing Date of Holdings or any parent thereof and to the extent such proceeds are not included in the calculation of the Available Amount.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of any Loan Party the Borrower or any Restricted Subsidiary (other than any Permitted Joint Venture Subsidiary) to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations, or (ii) the ability of any Restricted Subsidiary (other than any Permitted Joint Venture Subsidiary) to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary Guarantor or to Guarantee Indebtedness of the Borrower or any other Restricted SubsidiarySubsidiary Guarantor; provided (x) that (A) the foregoing shall not apply to restrictions and conditions (A) imposed by law or by any Loan Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary or other assets pending such sale, provided such restrictions and conditions apply only to the Restricted Subsidiary or assets that is are to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Restricted Subsidiary by the terms of any Indebtedness of such Foreign Restricted Subsidiary permitted to be incurred hereunder, (D) imposed pursuant to other Indebtedness incurred pursuant to Section 6.1 with such encumbrances and restrictions that, taken as a whole, are not more restrictive than the terms hereof, (E) [reserved], (F) on Permitted Joint Ventures or other joint ventures permitted under Section 6.4 and Permitted Syndication Subsidiaries imposed by the terms of the agreements governing the same, (G) applicable to an Acquired Entity at the time such Acquired Entity became a Subsidiary, so long as such restriction or encumbrance was not created in contemplation of or in connection with such Acquired Entity becoming a Subsidiary and apply only to such Acquired Entity and (H) contained in the Term Loan Facility Credit Agreement or the other Term Loan Facility Loan Documents; provided that such restrictions and conditions are no more onerous than those set forth in the Term Loan Facility Loan Documents in effect on the Closing Date; and (y) clause (i) of the foregoing shall not apply to restrictions or conditions (A) that are customary provisions in leases and other contracts restricting the assignment thereof and any right of first refusal and (B) imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof, (F) clause (i) of the foregoing shall not apply to customary restrictions and conditions contained in contractual obligations governing Indebtedness permitted pursuant to Section 6.01(b), (f), (g), (h), (l) or (s), provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; (G) the foregoing clause (i) shall not apply to customary restrictions and conditions contained in agreements relating to a merger of the Borrower permitted hereunder pursuant to Section 6.09(b)(ii) pending such merger, provided that such limitations shall not restrict the Loan Parties’ ability to grant liens on the Collateral pursuant to the Security Documents, impair the rights or benefits of the Secured Parties in any Collateral or otherwise impair the ability of the Loan Parties to perform their obligations under the Loan Documents; and (H) the foregoing shall not apply to restrictions and conditions in effect on the Closing Date as shown on Schedule 3.10 (and any renewal, extension or replacement therefor so long as such renewal, extension or replacement does not expand the scope of any applicable restriction or condition).
Appears in 1 contract
