Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V. (b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except: (i) payment of Indebtedness created under the Loan Documents; (ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness; (iii) refinancings of Indebtedness to the extent permitted by Section 6.01; (iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and (v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Party.
Appears in 3 contracts
Sources: Credit Agreement (Potbelly Corp), Credit Agreement (Potbelly Corp), Credit Agreement (Potbelly Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any other Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur enter into any obligation (contingent or otherwise) transaction the economic effect of which is substantially similar to do soany Restricted Payment, except (i) Holdings and the Borrower may declare and pay dividends with respect to its common or preferred their capital stock payable solely in additional shares of its their respective common or preferred stock, (ii) any Subsidiary may make Restricted Payments to Subsidiaries (other than the Borrower, any Subsidiary that is a Loan Party ) may make Restricted Payments declare and pay dividends ratably with respect to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower Holdings may make distributions Restricted Payments, not exceeding $3,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, Restricted Subsidiaries; (iv) so long as no Default shall have occurred and is be continuing or would occur as a result thereoffrom the making of such payment, (iv) the Borrower may make distributions pay dividends to Holdings at such times and in an amount such amounts as shall be necessary to enable permit Holdings to pay when duedischarge, to the extent permitted hereunder, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, permitted liabilities; (v) [intentionally omitted]on and after the Leverage Target Date, (vi) Potbelly Franchising Holdings may declare and pay dividends in cash with respect to its convertible preferred stock outstanding as of the Amendment No. 4 Effective Date in an amount not exceeding $40,000,000 in any fiscal year and the Borrower may declare and pay dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually declare and promptly uses pay such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viiivi) Permitted J/Vs at any time after the consummation of the Structured Note Financing, the Borrower may make Restricted Payments declare and pay a dividend to the holders of their Equity Interests Holdings so long as (x) the aggregate amount of such Restricted Payments are made on a pro rata basis dividend shall not exceed the principal amount of the Structured Note Bridge Indebtedness outstanding at the time such dividend is paid plus accrued interest thereon, (y) no Default has occurred and is continuing or would result therefrom and (z) immediately upon receipt thereof, Holdings shall apply all of the proceeds of such dividend to all such holders repay in accordance with their respective Equity Interests in such Permitted J/V.full the Structured Note Bridge Indebtedness then outstanding.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any voluntary payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any High Yield Notes, any Qualifying Holdings Debt or any Qualifying Borrower Indebtedness (collectively "Specified Indebtedness"), or any voluntary payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any IndebtednessSpecified Indebtedness (or enter into any transaction the economic effect of which is substantially similar to any of the foregoing), except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment , provided no Default has occurred and is continuing or would result therefrom, payments of regularly scheduled interest and principal payments as and when due in respect of any Specified Indebtedness other than Qualifying Borrower Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Party.
Appears in 3 contracts
Sources: Aircraft Dry Lease (Williams Companies Inc), Aircraft Dry Lease (Williams Companies Inc), Master Lease Agreement (Williams Companies Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any of the Subsidiary Loan Parties to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except, to the extent that no Default has occurred and is continuing or would result therefrom:
(i) Holdings the Borrower may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares Equity Interests of its common or preferred stock, the same class;
(ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions declare and pay cash dividends with respect to Holdings any outstanding shares of Series A Preferred Stock, provided that the aggregate amount of such cash dividends paid by the Borrower from the Effective Date to July 1, 2003 shall not exceed the sum of (A) $21,000,000 plus (B) Excess Cash Flow for payment the fiscal year ending December 31, 2002 plus (C) the Net Proceeds received by the Borrower in respect of reasonable out-of-pocket operating and administrative costs and expenses payable the issuance by Holdings, the Manager Borrower of additional Equity Interests to the extent not otherwise used for Permitted Acquisitions or the Borrowerpurchase, as the case may be, and incurred primarily in connection with the business redemption or retirement of the Borrower, so long as no Default shall have occurred 2008 Subordinated Notes pursuant to clause (v) of Section 6.08(b);
(iii) Subsidiary Loan Parties may declare and is continuing or would occur as a result thereof, pay dividends ratably with respect to their Equity Interests;
(iv) the Borrower may make distributions Restricted Payments, not exceeding $500,000 during any fiscal year, pursuant to Holdings and in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (accordance with stock option plans or arising as a result of) the operations other benefit plans for management or employees of the Borrower, the Manager Borrower and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, its Subsidiaries;
(v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs Borrower may make Restricted Payments for the purpose of purchasing, redeeming or refinancing the shares of Series A Preferred Stock in an amount not exceeding $11,000,000 (it being understood and agreed that any shares of Series A Preferred Stock purchased or redeemed pursuant to this clause (v) shall immediately be canceled by the holders Borrower); and
(vi) the Borrower may make Restricted Payments in cash, not exceeding $15,000,000, for the purpose of their Equity Interests so long as purchasing or redeeming shares of the Borrower's common stock; provided that if the Total Leverage Ratio shall be less than 4.50 to 1.00, on a pro forma basis after giving effect to such Restricted Payment, then the Borrower may make additional Restricted Payments pursuant to this clause (vi) in excess of $15,000,000; provided further that the aggregate amount of all such Restricted Payments are made pursuant to this clause (vi) on a pro rata cumulative basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.after April 30, 2003 during the term of this Agreement shall not exceed $30,000,000.
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary Loan Party to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment or prepayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness permitted by Section 6.01;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) payments, in an aggregate amount not to exceed the sum of (A) the Net Proceeds received by the Borrower in respect of the issuance by the Borrower of additional Equity Interests to the extent not otherwise used for Permitted Acquisitions or the payment of cash dividends in respect of the Series A Preferred Stock pursuant to clause (ii) of Section 6.08(a) plus (B) Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2003, to the extent not otherwise used to prepay Term Borrowings in accordance with Section 2.10(d), or for the purpose of purchasing, redeeming or retiring the 2008 Subordinated Notes or Permitted Subordinated Debt (it being understood and agreed that any 2008 Subordinated Notes or Permitted Subordinated Debt purchased pursuant to this clause (v) shall immediately be canceled by the Borrower);
(vi) purchase of 2008 Subordinated Notes accepted for payment pursuant to the Debt Tender Offer on April 30, 2003 (it being understood and agreed that any 2008 Subordinated Notes purchased pursuant to this clause (vi) shall immediately be canceled by the Borrower); and
(vvii) repayments on, reductions of, forgiveness of or the termination payments in respect of the Parent Note so long aspurchase, redemption or retirement of any 2008 Subordinated Notes that remain outstanding after April 30, 2003, with the proceeds of the Tranche C Term Loans (it being understood and agreed that any 2008 Subordinated Notes purchased pursuant to this clause (vii) shall immediately be canceled by the Borrower); provided that proceeds of the Tranche C Term Loans in an amount equal to or greater than the cumulative amount of such payments (minus any case, after giving effect to any amounts released from such repayment, reduction, forgiveness or termination any other transactions escrow upon the request of the Borrower to be consummated simultaneously therewithused for purposes permitted under Section 5.11 (other than the purchase, there redemption or retirement of any 2008 Subordinated Notes pursuant to this clause (vii)), which amounts shall be released promptly by the Administrative Agent unless an Event of Default has occurred or is no net cash outflow continuing) shall have been deposited in an account maintained by the Administrative Agent on April 30, 2003 and shall remain in escrow prior to Holdings from such purchase, redemption or retirement; provided further that the Borrower or will not be required to deposit into escrow any other Loan Partyproceeds of the Tranche C Term Loans pursuant to this clause (vii) if the aggregate principal amount of the 2008 Subordinated Notes outstanding on April 30, 2003 is not more than $19,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Cumulus Media Inc), Amendment and Restatement Agreement (Cumulus Media Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Other than as specified in the first sentence of Section 5.11, neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred capital stock, (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower Holdings may make distributions Restricted Payments, not exceeding $2,000,000 during any fiscal year, pursuant to Holdings and in accordance with stock option plans or other benefit plans for payment directors, management or employees of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager Borrower and the Subsidiaries, including the redemption or purchase of capital stock of Holdings held by former directors, management or employees of Holdings, the Borrower, as the case may be, and incurred primarily in connection with the business Borrower or any Subsidiary following termination of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereoftheir employment, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings at such times and in such amounts, not exceeding $2,000,000 during any fiscal year, as shall be necessary to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire discharge its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, permitted liabilities and (viiiv) Permitted J/Vs the Borrower and the Joint Venture Holding Companies may make Restricted Payments to Holdings at such times and in such amounts (but not prior to the holders fifth anniversary of their Equity Interests so long the date of issuance of the Cumulative Preferred Stock) as shall be necessary to enable Holdings, after such fifth anniversary, to pay dividends in cash on such Cumulative Preferred Stock as and when declared and payable, provided that, at the time of each Restricted Payment made in reliance upon this clause (v) and after giving pro forma effect to such payment, the Leverage Ratio shall not exceed 1.50 to 1.00, (vi) Holdings, the Borrower and the Subsidiaries may make Restricted Payments are made as and to the extent contemplated by the Recapitalization Agreement and (vii) Holdings may make Restricted Payments on account of the purchase, redemption or repurchase of the Cumulative Preferred Stock with the net proceeds of a pro rata basis substantially concurrent IPO, provided that, after giving effect to all such holders in accordance with their respective Equity Interests in such Permitted J/V.purchase, redemption or repurchase, no Default or Event of Default shall have occurred and be continuing.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than (A) payments in respect of the Subordinated Debt and the Junior Subordinated Note prohibited by the subordination provisions thereof, (B) principal payments in respect of the Junior Subordinated Note and (C) cash interest payments in respect of the Junior Subordinated Note unless, in the case of any such payment specified in this clause (C), at the time of such payment and after giving pro forma effect thereto the Leverage Ratio shall not exceed 1.50 to 1.00 and such payment is due and payable on or after the fifth anniversary of the date of issuance of the Junior Subordinated Note;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) payments on account of the redemption of the First Lien Notes or the Second Lien Notes or a combination thereof with not more than 25% of the aggregate net proceeds of one or more issuances of equity securities of Holdings, provided that (A) after giving effect to such redemption, no Default or Event of Default shall have occurred and be continuing, (B) not more than 35% of the original aggregate principal amount of the First Lien Notes or the Second Lien Notes is redeemed and (C) any such redemption shall be made within 90 days of such equity issuance and otherwise in compliance with the provisions of the First Lien Note Indenture or Second Lien Note Indenture, as applicable;
(vi) payments in respect of any Permitted Receivables Facility; and
(vvii) repayments on, reductions of, forgiveness repayment of or certain Indebtedness of certain Foreign Subsidiaries on the termination Effective Date as specified in the first sentence of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartySection 5.11.
Appears in 2 contracts
Sources: Credit Agreement (On Semiconductor Corp), Amendment and Restatement Agreement (On Semiconductor Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willshall, nor will it shall any Loan Party permit any Subsidiary of its Subsidiaries or the LS&Co. Trust to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments, except (i) Holdings may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrowerthat, so long as no Default or Event of Default shall have occurred and is be continuing at the time of any action described below or would occur result therefrom: (i) the U.S. Borrower may declare and pay dividends and distributions payable only in Equity Interests (other than Disqualified Stock) of the U.S. Borrower, (ii) the U.S. Borrower may purchase Equity Interests from present or former employees, directors or other recipients (and their beneficiaries) of such Equity Interests under the U.S. Borrower’s incentive compensation plans and agreements as provided under such plans and agreements for aggregate consideration not to exceed $35.0 million in any twelve (12) Fiscal Month period, (iii) Restricted Payments to a result thereofU.S. Loan Party, (iv) the Borrower may make distributions Restricted Payments by any Foreign Subsidiary to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state any Canadian Loan Party and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], Restricted Payments by any Foreign Subsidiary (viother than a Canadian Loan Party) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrowerany Foreign Subsidiary; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, that (viii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance requirements of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed this Section 6.08(a) shall not apply to any Restricted Payment when the Payment Conditions with respect thereto are satisfied and the Loan Party, Parties shall have delivered to the Administrative Agent either a certificate of a Financial Officer (with reasonably detailed calculations) certifying satisfaction of the Payment Conditions or other evidence of the same reasonably satisfactory to the Administrative Agent and (viiiii) Permitted J/Vs may make no Default or Event of Default shall be deemed to have occurred if the Payment Conditions with respect to any Restricted Payment cease to be satisfied based solely on any Restricted Payments to made when the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance Payment Conditions with their respective Equity Interests in such Permitted J/V.respect thereto were satisfied.
(b) No Loan Party willshall, nor will it shall any Loan Party permit any Subsidiary of its Subsidiaries or the LS&Co. Trust to, make prepay, redeem, purchase, defease or agree otherwise satisfy prior to pay the scheduled maturity thereof in any manner (collectively, a “prepayment”) any Indebtedness, except (i) the prepayment of the Loans in accordance with the terms of this Agreement, (ii) the prepayment of Indebtedness payable to a U.S. Loan Party, (iii) the prepayment of Indebtedness payable to a Canadian Loan Party by any Foreign Subsidiary, (iv) the prepayment of Indebtedness owed to any Foreign Subsidiary by any Foreign Subsidiary (other than a Canadian Loan Party), (v) the prepayment of the outstanding principal amount of, premium or makepenalty, directly or indirectlyif any, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or and interest on any Indebtedness, Indebtedness (other than the Loans) that is secured by a Lien on the stock or any payment or other distribution (whether assets in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created question and that is required to be repaid under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due terms thereof as a result of a permitted Disposition, (vi) the voluntary sale prepayment of Indebtedness, in whole or transfer in part, from the net cash proceeds of (or in exchange for) Permitted Refinancing Indebtedness, (vii) the close out of Ordinary Course Swap Agreements, (viii) the prepayment of Indebtedness of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect U.S. Borrower to any such repayment, reduction, forgiveness or termination of its Subsidiaries and Indebtedness of any other transactions of its Subsidiaries to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the U.S. Borrower or any of its other Loan Party.Subsidiaries to the extent such Indebtedness to be prepaid is permitted pursuant to Section 6.01, in each
Appears in 2 contracts
Sources: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings may declare and pay dividends or distributions with respect to its common or preferred stock Equity Interests payable solely in additional shares Equity Interests of its common or preferred stockHoldings, (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests, (iii) provided no Default or Event of Default is continuing or would result therefrom, Holdings and the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings, the Borrower and its Subsidiaries; provided that the amount thereof, taken together with any Subsidiary payments or transfers of cash, assets or debt securities pursuant to clause (e) of Section 6.09, do not exceed $5,000,000 in any fiscal year, (iv) provided no Default or Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments to Holdings, and Holdings may, in turn, make such Restricted Payments to the Parent in an aggregate amount per fiscal year not to exceed the Borrower’s Portion of Excess Cash Flow for the immediately preceding fiscal year less the amount of other Designated Excess Cash Expenditures made with such Borrower’s Portion of Excess Cash Flow for such immediately preceding fiscal year; provided that the proceeds of such Restricted Payments are used (x) to effect Specified Investments, (y) to pay interest on Restructuring Notes or Additional Notes (provided, however, that any Subsidiary such dividends or distributions relating to any such cash interest payment must be paid not earlier than ten Business Days prior to the date when such cash interest is required to be paid by the Ultimate Parent and the proceeds must (except to the extent prohibited by applicable subordination provisions) be applied by the Ultimate Parent, to the payment of such interest when due) or (z) at any time on or after the second anniversary of the Closing Date and so long as the Ultimate Parent Leverage Ratio is less than or equal to 3.00 to 1.00, to effect repurchases of Restructuring Notes or Additional Notes, (v) Restricted Payments in amounts as shall be necessary to make Tax Payments; provided that all Restricted Payments made pursuant to this clause (v) are used by the Parent or Holdings for the purpose specified in this clause (v) within 30 days of receipt thereof, (vi) provided no Default or Event of Default is continuing or would result therefrom, the Borrower may from time to time pay cash dividends or distributions to Holdings and Holdings may, in turn, use the proceeds thereof to pay cash dividends or distributions to the Parent, in each case in an amount not in excess of the regularly scheduled cash interest payable on the Restructuring Notes (or any Additional Notes incurred to refinance such Restructuring Notes) during the next period of ten Business Days, provided, however, that (A) any such dividends or distributions relating to any such cash interest payment must be paid not earlier than ten Business Days prior to the date when such cash interest is required to be paid by the Ultimate Parent and the proceeds must (except to the extent prohibited by applicable subordination provisions) be applied by the Ultimate Parent, to the payment of such interest when due, (B) to the extent the amount of any such dividend or distribution together with the aggregate amount of other dividends or distributions made pursuant to this clause (vi) during the then current fiscal year exceeds the Ultimate Parent Annual Cash Interest Amount for such fiscal year, such excess amount shall (x) reduce the amount of Restricted Payments permitted pursuant to clause (iv) above, the amount of Optional Repurchases of other Indebtedness permitted under Section 6.08(b)(vi) and the amount of Investments permitted under Sections 6.04(f) and 6.04(l), in each case, during the following fiscal year of the Borrower based on the Borrower’s Portion of Excess Cash Flow with respect to the Excess Cash Flow in respect of the then current fiscal year and (y) only be permitted to be paid to the extent Restricted Payments are not otherwise permitted to be paid under this Section for such purpose at such time and to the extent such amount does not exceed the amount of the anticipated Borrower’s Portion of Excess Cash Flow with respect to the Excess Cash Flow in respect of the then current fiscal year of the Borrower (to be calculated and evidenced in a Loan Party manner reasonably satisfactory to the Administrative Agent) and (C) the Borrower and its Subsidiaries shall be in Pro Forma Compliance after giving effect to the payment of any such dividends or distributions pursuant to this clause (vi), (vii) the Borrower may make Restricted Payments to any other Subsidiary that is a Loan PartyHoldings, and any Subsidiary that Holdings may, in turn, make such Restricted Payments as part of the Shared Services Transactions and (viii) provided no Default or Event of Default is not a Loan Party continuing or would result therefrom, the Borrower may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided thatmay, in each turn, make such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders Parent in an aggregate amount not to exceed $5,000,000 during any fiscal year of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.the Borrower.
(b) No Loan Party willHoldings and the Borrower will not, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of subordinated Indebtedness to the extent prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) prepayment of Capital Lease Obligations in an aggregate cumulative amount from and after the Closing Date not exceeding $5,000,000;
(vi) provided no Default or Event of Default is continuing or would result therefrom, Optional Repurchases of other Indebtedness involving cumulative expenditures in any fiscal year not in excess of an amount equal to the Borrower’s Portion of Excess Cash Flow for the immediately preceding fiscal year less the amount of other Designated Excess Cash Expenditures made with such Borrower’s Portion of Excess Cash Flow for such immediately preceding fiscal year;
(vii) payment of any Indebtedness owing to the Service Company arising pursuant to the Shared Services Transactions; and
(vviii) repayments onpayment of any Indebtedness owing to Holdings, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Subsidiary Loan Party.
(c) Holdings and the Borrower will not, and will not permit any Subsidiary to, furnish any funds to, make any Investment in, or provide other consideration to any other Person for purposes of enabling such Person to, or otherwise permit any such Person to, make any Restricted Payment or other payment or distribution restricted by this Section that could not be made directly by Holdings or the Borrower in accordance with the provisions of this Section.
(d) Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, the Loan Parties shall be permitted to make all distributions required to be made by the Loan Parties on or after the Closing Date (as defined in the Reorganization Plan) pursuant to the Reorganization Plan and the Confirmation Order, in each case as in effect on the Closing Date.
Appears in 2 contracts
Sources: Credit Agreement (DEX ONE Corp), Credit Agreement (DEX ONE Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and it will it not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings the Borrower may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party 's Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower may make distributions declare and pay dividends to Holdings for payment in an aggregate amount not in excess of reasonable out-of-pocket $100,000 per annum to the extent required to pay the operating and administrative costs and expenses payable by (including franchise taxes) of Holdings, the Manager or the BorrowerSupermarket Holdings and SMG II Holdings, as the case may be, and incurred primarily in connection with the business of the Borrower, (iv) so long as no Event of Default shall have occurred and is be continuing or would occur as a result thereofshall be caused thereby, (iv) the Borrower may make distributions payments to Supermarket Holdings in an amount satisfaction of a corresponding portion of the Borrower's obligations under the Supermarket Holdings Intercompany Note at such times, in such amounts and to such extent (and only at such times, in such amounts and to such extent) necessary to enable Supermarket Holdings to pay when due, its actual federal, state make regularly scheduled payments of principal and local income Taxes directly attributable to (or arising as a result of) the operations interest in respect of the Borrower, the Manager and their Subsidiaries that are due and payable by any Supermarket Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Subordinated Notes not
(b) No Loan Party willThe Borrower will not, nor and it will it not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Subordinated Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Subordinated Indebtedness, except:
: (i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
Subordinated Indebtedness in accordance with the terms of, and only to the extent required by, and subject to the subordination provisions contained in, the indenture or other agreement pursuant to which such Subordinated Indebtedness was issued, as such indenture or other agreement may be amended from time to time to the extent permitted under Section 6.11; (iiiii) refinancings of Indebtedness to the extent permitted by Section 6.01;
6.01(a)(v) and (vii); (iii) repayments or repurchases of all or a portion of the Subordinated Notes or the Subordinated Debentures with (A) the Net Proceeds of Specified Permitted Refinancing Transactions with respect to any Specified Real Estate not exceeding an aggregate of $100,000,000 and (B) the Net Proceeds of any Excluded Asset Sale specified in clause (c) of the definition of such term; and (iv) sinking fund payments by the Borrower on June 15, 2000, and June 15, 2001, in an aggregate amount for each such payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long asup to $50,000,000, in any case, after giving effect each case with respect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartySubordinated Notes.
Appears in 2 contracts
Sources: Credit Agreement (Pathmark Stores Inc), Credit Agreement (Supermarkets General Holdings Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Alamosa Delaware nor the Borrower will, nor will it they permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings Alamosa Delaware may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary may make Restricted Payments to Subsidiaries (other than the Borrower) may declare and pay dividends ratably with respect to their Capital Stock; provided, that no distribution referred to in this clause (ii) shall be permitted to be made by any Special Purpose Subsidiary that unless such distribution is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, in cash or in shares of its common Capital Stock pledged under the Pledge Agreement and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiaryno Default or Event of Default shall have occurred and be continuing or would result therefrom, (iii) Alamosa Delaware may make Restricted Payments, not exceeding $1,000,000 during any fiscal year pursuant to and in accordance with stock option plans or other benefit plans for directors, management or employees of Alamosa Delaware and its Restricted Subsidiaries, (iv) at a time, in the case of both (x) and (y) below, when there does not exist a Default (or such distribution would not cause a Default), the Borrower may make distributions to Holdings Alamosa Delaware for payment of reasonable out-the sole purpose of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary sufficient to enable Holdings to pay fund, the payment of (x) principal at scheduled maturity and (y) interest when duedue as scheduled, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations in each case in respect of the Borrower12 7/8% Senior Discount Notes and the 12 1/2% Senior Notes; provided, in the Manager case of both (x) and their Subsidiaries (y), that are such payment is due or to become due within 30 days from the date of such distribution and payable by Holdings as the parent of a consolidated groupcash distributed is in fact utilized to meet such payment obligation, (v) [intentionally omitted]if no Default has occurred and is continuing, the Borrower may pay dividends to Alamosa Delaware and Alamosa Delaware may pay dividends, in each case at such times and in such amounts, not exceeding the lesser of (A) $1,000,000 and (B) $50,000,000 minus the amount of all other Permitted Equity Proceeds Uses at such time, during any fiscal year as shall be necessary to permit each of Alamosa Delaware, APCS and Superholdings to discharge its permitted liabilities, (vi) Potbelly Franchising may declare if no Default has occurred and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in is continuing, Alamosa Delaware, the Borrower; provided that, in each such case, Holdings actually Borrower and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs other Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to exceed $50,000,000 minus the holders amount of their all other Permitted Equity Interests so long as Proceeds Uses at such time and (vii) Restricted Payments are may be made on a pro rata basis the Restatement Effective Date as necessary to all such holders in accordance with their respective Equity Interests in such Permitted J/V.consummate the Southwest Transactions.
(b) No Loan Party Neither Alamosa Delaware nor the Borrower will, nor will it they permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when not more than 30 days prior to the date on which such payments become due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) the exchange, in a registered public offering, for the 12 1/2% Senior Notes of senior notes of Alamosa Delaware in an equivalent principal amount having the same terms and conditions as the 12 1/2% Senior Notes;
(vi) payment of intercompany Indebtedness (A) among the Borrower and the Subsidiary Loan Parties, (B) by Alamosa Delaware to the Borrower or any Subsidiary Loan Party and (C) if no Default or Event of Default has occurred and is continuing, by the Borrower or any Subsidiary Loan Party to Alamosa Delaware; and
(vvii) repayments on, reductions of, forgiveness payment of or Indebtedness under any Hedging Agreements permitted under Section 6.07 in connection with the termination (including early termination) of such Hedging Agreements in the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Partyordinary course of business.
Appears in 2 contracts
Sources: Credit Agreement (Alamosa Properties Lp), Credit Agreement (Alamosa Properties Lp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(i) Holdings Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends with respect or make other distributions of property to its common or preferred stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and provided that any Subsidiary that is not a Loan Party may make such Restricted Payments made to BCF Holdings or Parent under this clause (i) shall be used (w) to pay general corporate and overhead expenses incurred by BCF Holdings or Parent in the ordinary course of business, or the amount of any other Subsidiaryindemnification claims made by any director or officer of BCF Holdings or Parent, (iiix) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating pay franchise taxes and administrative costs other fees, taxes and expenses payable by Holdings, required to maintain the Manager corporate existence of BCF Holdings or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereofParent, (ivy) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries taxes that are due and payable by BCF Holdings as the parent of a consolidated group, group that includes Parent and its Subsidiaries or (vz) [intentionally omitted], to make other payments that BCF Holdings and Parent are not otherwise prohibited from making pursuant to this Agreement;
(viii) Potbelly Franchising may declare The Loan Parties and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the holders extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(iv) The Loan Parties and their Equity Interests Subsidiaries may make Restricted Payments constituting repurchases of equity interests in BCF Holdings or any Subsidiary (or distributions to BCF Holdings for such purpose) in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (iv) shall not exceed $5,000,000 in any Fiscal Year of BCF Holdings;
(v) in addition to the foregoing Restricted Payments, the Borrower may declare, pay and/or make the Dividend Payment; and
(vi) so long as such Restricted Payments are made (x) no Default or Event of Default has occurred and is continuing, (y) on a pro rata basis Pro Forma Basis, the Borrower would be in compliance with each of the Financial Performance Covenants for the most recently ended Fiscal Quarter for which financial statements have been or are then required to all such holders in accordance with their respective Equity Interests in such Permitted J/V.have been delivered and (z) the Consolidated Leverage Ratio as of the last day of the most recently ended Fiscal Quarter for which financial statements have been or are then required to have been delivered would be less than or equal to 3.5 to 1.0, any Loan Party or any Subsidiary may make any Restricted Payment.
(b) No Loan Party will, nor will it permit any Subsidiary of its Subsidiaries to, make or agree to pay or make, directly or indirectly, make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Specified Indebtedness, except:
(i) payment payments in Capital Stock (so long as no Change of Indebtedness created under Control would result therefrom) and payments of interest in-kind of the Loan DocumentsParties and their Subsidiaries;
(ii) payment payments of regularly scheduled interest in respect of any Subordinated Indebtedness (subject to applicable subordination provisions relating thereto);
(iii) payments of principal (including mandatory prepayments) and principal payments interest as and when due in respect of any Specified Indebtedness (other than Subordinated Indebtedness);
(iiiiv) prepayment in whole or in part of Specified Indebtedness from any refinancing of such Specified Indebtedness with the proceeds of (x) any equity securities (other than Permitted Cure Securities) issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment and/or (y) other Indebtedness not prohibited hereunder;
(v) so long as no Default or Event of Default has occurred and is continuing, any Loan Party and any of its Subsidiaries may make payments in respect of Specified Indebtedness from the portion of the Available Amount such Loan Party or such Subsidiary elects to apply pursuant to this clause (v); and
(vi) refinancings of Specified Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Partyunder this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.), Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings the Borrower may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of Common Stock or warrants to purchase its common or preferred stockCommon Stock, (ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their capital stock; provided that no distribution referred to in this clause (ii) shall be permitted to be made by any Special Purpose Subsidiary may make Restricted Payments to the Borrower, if any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, Default or Event of Default shall have occurred and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarybe continuing or would result therefrom, (iii) the Borrower may make distributions Restricted Payments, not exceeding $1,000,000 during any fiscal year, and at such times as shall be necessary in order to provide Holdings an amount of cash sufficient to enable Holdings to make payments pursuant to and in accordance with stock option plans or other benefit plans for payment management or employees of reasonable out-of-pocket operating the Borrower and administrative costs its Subsidiaries, (iv) following the end of the fiscal year of the Borrower ending December 31, 2001, and expenses payable by Holdingsfollowing the end of each subsequent fiscal year, the Manager or Borrower may make Restricted Payments with respect to its Capital Stock in an amount not in excess of 50% of Excess Cash Flow for such fiscal year, provided that the Borrowerprepayments required by Section 2.09(c) have previously been made and (v) any Auction Subsidiary may make Restricted Payments to THC with respect to its preferred stock and its Capital Stock, as (vi) following the case may be, and incurred primarily in connection with the business end of the Borrowerfiscal year of the Borrower ending December 31, so long 2000, the Borrower may make Restricted Payments with respect to its Capital Stock in aggregate amount not to exceed the amount of any proceeds of the Lucent Financing contributed to the Borrower as a capital contribution in an amount not in excess of Excess Cash Flow generated after the date such capital contribution first occurs or, if greater, an amount not in excess of Excess Cash Flow for the fiscal year most recently ended, provided that the prepayments required by Section 2.09(c) have previously been made, (vii) the Borrower may make Restricted Payments with respect to its Capital Stock to fund the obligations of Holdings to make repurchase, redeem, acquire or retire for value any Capital Stock of Holdings held by any member or former member of the management of the Borrower and its Subsidiaries pursuant to any management equity subscription agreement, stock option agreement restricted stock agreement, put agreement or other similar arrangements, provided that (i) no Event of Default shall have occurred and is be continuing and (ii) the aggregate amount of such Restricted Payments shall not exceed $10,000,000 in any fiscal year of the Borrower, provided further that up to an aggregate of $20,000,000 of unused amounts of permitted Restricted payments during one or would occur as a result thereof, more fiscal years may be carried forward to one or more future fiscal years and (ivviii) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments with respect to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.its Capital Stock for any other purpose not exceeding $10,000,000 during any fiscal year.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness permitted by Section 6.01(a), other than (x) payments in respect of the Subordinated Debt prohibited by the subordination provisions thereof, (y) payments in respect of the Series A Bonds or the Series B Bonds prohibited by the proviso in 6.01(a)(v) and (z) payments in respect of the subordinated Indebtedness permitted by Section 6.01(a)(xv) prohibited by the subordination provisions thereof or prohibited by clause (ii) of the proviso of such Section;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness permitted by Section 6.01(a) that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) mandatory prepayments of the Series A Bonds as a result of the issuance of equity securities by the Holdings with up to 50% of the net cash proceeds of any such issuance; provided, that, no prepayment of the Series A Bonds will be made in connection with (i) sales of stock necessary to provide the initial $128,000,000 of cash equity capitalization of the Borrower or, if the Supplemental Closing (as defined in the Securities Purchase Agreement) occurs, the initial $133,000,000 of cash equity capitalization of the Borrower and (ii) the issuance by the Borrower of approximately $39,996,000 of stock to AW and approximately $39,996,000 of stock to other Equity Participants in connection with the San ▇▇▇▇ Acquisition;
(vi) mandatory prepayments of the Series B Bonds in accordance with the terms of Section 10.5 of the Lucent Note Purchase Agreement; and
(vvii) repayments onprepayments of Indebtedness assumed in connection with the Indus Acquisition, reductions of, forgiveness of or the termination of Airadigm Acquisition and the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyBlack Label Acquisition.
Appears in 2 contracts
Sources: Credit Agreement (Telecorp Communications Inc), Credit Agreement (Telecorp PCS Inc /Va/)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party None of Holdings, the Parent Borrower or any Foreign Subsidiary Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may (x) declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares Equity Interests of Holdings, (y) repurchase Equity Interests not to exceed $10,000,000 from former shareholders of its common existing or preferred stock, (ii) any Subsidiary may make Restricted Payments former Subsidiaries that received such Equity Interests of Holdings prior to the Borrowerdate hereof and (z) repurchase the preferred stock of Holdings in an aggregate amount not to exceed $20,000,000, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Partyprovided that, at the time of such repurchase and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiaryafter giving effect thereto, (iii) the Borrower may make distributions to Holdings for payment no Default or Event of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is be continuing and Holdings and the Parent Borrower are in compliance with Sections 6.13 and 6.14;
(ii) Subsidiaries may declare and pay dividends ratably with respect to their capital stock;
(iii) the Parent Borrower may make payments to Holdings to permit it to make, and Holdings may make, Restricted Payments, not exceeding $2,000,000 during any fiscal year (provided that such amount shall be increased, in respect of the fiscal year ending on December 31, 2002, and each fiscal year thereafter by an amount equal to the total unused amount of such Restricted Payments for the immediately preceding fiscal year (without giving effect to the amount of any unused amounts that were carried forward to such preceding fiscal year) not to exceed in the aggregate $16,000,000), in each case pursuant to and in accordance with stock option plans, equity purchase programs or would occur as a result thereofagreements or other benefit plans, in each case for management or employees or former employees of the Parent Borrower and the Subsidiaries;
(iv) the Parent Borrower may make distributions pay dividends to Holdings at such times and in an amount such amounts (A) as shall be necessary to enable Holdings to pay when due, make payments permitted by clause (z) of Section 6.08(a)(i) and Sections 6.08(a)(v) and (vi) and (B) as shall be necessary to permit Holdings to discharge its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, other permitted liabilities;
(v) [intentionally omitted]Holdings may pay Holdings Preferred Dividends and interest in respect of its Indebtedness permitted hereunder, provided that, at the time of such payment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and Holdings and the Parent Borrower are in compliance with Sections 6.13 and 6.14;
(vi) Potbelly Franchising Holdings may declare make payments to the extent contemplated by the Recapitalization Agreement, including payments in respect of the restricted stock granted pursuant to the Restricted Stock Obligation (including payments in respect of the Restricted Stock Obligation after the date such payments were scheduled to have been made), provided that, at the time of such payment in respect of the Restricted Stock Obligation and after giving effect thereto, no Event of Default shall have occurred and be continuing;
(vii) Holdings may (x) pay cash dividends the Saturn Proceeds Distribution and (y) repurchase, redeem, repay or otherwise retire the Convertible Debentures with Available Funds, proceeds from Permitted Senior Notes (to the extent permitted by such defined term), Permitted Subordinated Notes or issuances or sales of capital stock of Holdings; and
(viii) Parent Borrower may make payments to Holdings to permit it to make, and Holdings to invest such cash dividends in the Borrowermay make payments permitted by Sections 6.09(f), (g), (h) and (i); provided that, at the time of such payment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and Holdings and the Parent Borrower are in each compliance with Sections 6.13 and 6.14; provided, further that any payments that are prohibited because of the immediately preceding proviso shall accrue and may be made as so accrued upon the curing or waiver of such caseDefault, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem Event of Default or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.noncompliance.
(b) No Loan Party None of Holdings, the Parent Borrower or any Foreign Subsidiary Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) the repurchase, redemption, repayment or other retirement of the Convertible Debentures as permitted by Section 6.08(a)(vii);
(iii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the subordinated Indebtedness prohibited by the subordination provisions thereof;
(iiiiv) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ivv) payment of secured Indebtedness that becomes due as a result out of the voluntary proceeds of any sale or transfer of the property or assets securing such Indebtedness; and
(vvi) repayments onpayment of Indebtedness or other obligations made pursuant to Section 5.16.
(c) None of Holdings, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyForeign Subsidiary Borrower will, nor will they permit any Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic Purchase Agreement related to any Equity Interest of Holdings, the payments required to be made by Holdings are limited to amounts permitted to be paid under Section 6.08(a), (ii) in the case of any Synthetic Purchase Agreement related to any Restricted Indebtedness, the payments required to be made by Holdings, the Parent Borrower or the Subsidiaries thereunder are limited to the amount permitted under Section 6.08(b) and (iii) in the case of any Synthetic Purchase Agreement, the obligations of Holdings, the Parent Borrower and the Subsidiaries thereunder are subordinated to the Obligations on terms satisfactory to the Required Lenders.
Appears in 2 contracts
Sources: Credit Agreement (Metaldyne Corp), Credit Agreement (Metaldyne Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willshall, nor will it shall any Loan Party permit any Subsidiary of its Subsidiaries or the LS&Co. Trust to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments, except (i) Holdings may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrowerthat, so long as no Default or Event of Default shall have occurred and is be continuing at the time of any action described below or would occur result therefrom: (i) the U.S. Borrower may declare and pay dividends and distributions payable only in Equity Interests (other than Disqualified Stock) of the U.S. Borrower, (ii) the U.S. Borrower may purchase Equity Interests from present or former employees, directors or other recipients (and their beneficiaries) of such Equity Interests under the U.S. Borrower’s incentive compensation plans and agreements as provided under such plans and agreements for aggregate consideration not to exceed $20.0 million in any twelve (12) Fiscal Month period, (iii) Restricted Payments to a result thereofU.S. Loan Party, (iv) the Borrower may make distributions Restricted Payments by any Foreign Subsidiary to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state any Canadian Loan Party and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], Restricted Payments by any Foreign Subsidiary (viother than a Canadian Loan Party) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrowerany Foreign Subsidiary; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, that (viii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance requirements of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed this Section 6.08(a) shall not apply to any Restricted Payment when the Payment Conditions with respect thereto are satisfied and the Loan Party, Parties shall have delivered to the Administrative Agent either a certificate of a Financial Officer (with reasonably detailed calculations) certifying satisfaction of the Payment Conditions or other evidence of the same reasonably satisfactory to the Administrative Agent and (viiiii) Permitted J/Vs may make no Default or Event of Default shall be deemed to have occurred if the Payment Conditions with respect to any Restricted Payment cease to be satisfied based solely on any Restricted Payments to made when the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance Payment Conditions with their respective Equity Interests in such Permitted J/V.respect thereto were satisfied.
(b) No Loan Party willshall, nor will it shall any Loan Party permit any Subsidiary of its Subsidiaries or the LS&Co. Trust to, make prepay, redeem, purchase, defease or agree otherwise satisfy prior to pay the scheduled maturity thereof in any manner (collectively, a “prepayment”) any Indebtedness, except (i) the prepayment of the Loans in accordance with the terms of this Agreement, (ii) the prepayment of Indebtedness payable to a U.S. Loan Party, (iii) the prepayment of Indebtedness payable to a Canadian Loan Party by any Foreign Subsidiary, (iv) the prepayment of Indebtedness owed to any Foreign Subsidiary by any Foreign Subsidiary (other than a Canadian Loan Party), (v) the prepayment of the outstanding principal amount of, premium or makepenalty, directly or indirectlyif any, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or and interest on any Indebtedness (other than the Loans) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of a permitted Disposition, (vi) the prepayment of Indebtedness, in whole or in part, from the net cash proceeds of (or in exchange for) Permitted Refinancing Indebtedness, (vii) the close out of Ordinary Course Swap Agreements, (viii) the prepayment of Indebtedness of the U.S. Borrower to any of its Subsidiaries and Indebtedness of any of its Subsidiaries to the U.S. Borrower or any payment or of its other distribution Subsidiaries to the extent such Indebtedness to be prepaid is permitted pursuant to Section 6.01, in each case, in accordance with any subordination terms thereof; provided in the case of a prepayment of Indebtedness of a Loan Party, at the time of such prepayment, such Loan Party would have been permitted to make an Investment in the Person to whom such prepayment is made in the amount of such prepayment, and (whether in cash, securities or other property), including any sinking fund or similar deposit, on account ix) prepayments of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
term loans outstanding under the Term Loan Agreement required pursuant to the terms thereof as in effect on the Effective Date; provided that (i) the requirements of this Section 6.08(b) shall not apply to any payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness when the Payment Conditions with respect to such payment are satisfied and the Loan Parties shall have delivered to the extent permitted by Section 6.01;
Administrative Agent either a certificate of a Financial Officer (ivwith reasonably detailed calculations) payment of secured Indebtedness that becomes due as a result certifying satisfaction of the voluntary sale Payment Conditions or transfer other evidence of the property same reasonably satisfactory to the Administrative Agent and (ii) no Default or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness Event of or Default shall be deemed to have occurred if the termination of the Parent Note so long as, in any case, after giving effect Payment Conditions with respect to any such repayment, reduction, forgiveness or termination any other transactions payment in respect of Indebtedness cease to be consummated simultaneously therewith, there is no net cash outflow to Holdings from satisfied based solely on any payments in respect of Indebtedness made when the Borrower or any other Loan Party.Payment Conditions with respect thereto were satisfied..
Appears in 2 contracts
Sources: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stockcapital stock (other than Redeemable Preferred Stock), (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower or any Subsidiary may make distributions to Holdings for payment acquire the equity securities of reasonable out-of-pocket operating and administrative costs and expenses payable any Subsidiary not owned by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and it if such purchase is continuing or would occur as a result thereofotherwise permitted by this Agreement, (iv) the Borrower may make distributions Restricted Payments to Holdings in an amount necessary to enable Holdings to pay when duemake Restricted Payments, its actual federalnot exceeding $5,000,000 during any fiscal year, state pursuant to and local income Taxes directly attributable to (in accordance with stock option plans or arising as a result of) the operations other benefit plans for management or employees of the BorrowerBorrower and its Subsidiaries (including for the purpose of repurchasing equity securities following the death, disability or termination of employment of employees or former employees of Holdings), provided that any -------- unused portion of such amount in any fiscal year (without giving effect to this proviso) may be carried forward to the Manager next fiscal year only, and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising the Borrower may declare and pay cash dividends to Holdings at such times and in such amounts as shall be necessary to permit Holdings to invest such cash dividends pay for (a) corporate, administrative and operating expenses in the Borrower; provided thatordinary course of business, including payment of directors' and officers' insurance premiums, key man life insurance premiums, reasonable and customary directors' fees and fees, expenses and indemnities incurred in each such case, Holdings actually connection with the issuance of the Subordinated Notes and promptly uses such dividends for such investmentsthe Transactions, (viib) each the costs of Holdings (including all professional fees and expenses) incurred to comply with its reporting obligations under federal or state laws or under the Subordinated Note Documents or the Loan Party may purchaseDocuments or similar instruments, redeem (c) the expenses of Holdings incurred in connection with any public offering of equity securities, the net proceeds of which were specifically intended to be received by or otherwise acquire its common contributed or preferred Equity Interests with loaned to the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan PartyBorrower, and (viiid) Permitted J/Vs may make Restricted Payments to amounts due under any tax sharing agreement under which the holders Borrower and its Subsidiaries are allocated its proportionate share of their Equity Interests so long as such Restricted Payments are made the actual tax liability of the affiliated group of corporations that file consolidated federal income tax returns (or that file state or local income tax returns on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.consolidated basis).
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of (x) interest and principal in respect of any Indebtedness, other than the Subordinated Notes or other subordinated Indebtedness and (y) regularly scheduled interest and principal payments as and when due in respect of any the Subordinated Notes and other subordinated Indebtedness, other than payments in respect of the Subordinated Notes or other subordinated indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness repurchases of Subordinated Notes that are required to be made with the proceeds of voluntary sales or transfers of property or assets pursuant to the termination provisions of the Parent Note so long asSubordinated Debt Documents, in any case, after giving effect to any the extent such repayment, reduction, forgiveness or termination any other transactions proceeds are not required to be consummated simultaneously therewith, there is no net cash outflow used to Holdings from the Borrower or any other Loan Partyprepay Borrowings pursuant to Section 2.11 hereof.
Appears in 2 contracts
Sources: Credit Agreement (Eagle Family Foods Inc), Credit Agreement (Eagle Family Foods Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Credit Agreement Party will, nor will it permit any Subsidiary of its Subsidiaries to (nor will it apply to the Bankruptcy Court or the Canadian Court for authority to), declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) each of Holdings and the U.S. Borrower may declare and pay dividends with respect to its common stock payable solely in additional shares of its common stock, and Holdings may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of such preferred stock or in shares of its common or preferred stock, (ii) any Subsidiary Subsidiaries of the U.S. Borrower may declare and pay dividends ratably with respect to their capital stock, membership or partnership interests or other similar Equity Interests, (iii) the U.S. Borrower may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may Holdings to permit Holdings to make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings and its Subsidiaries that have been approved by the board of directors of Holdings in an amount during any other Subsidiary that is Fiscal Year equal to the sum of (A) U.S.$1,000,000 and (B) amounts received by Holdings as a Loan Partyresult of the sale of Equity Interests in Holdings to employees, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiaryofficer, (iii) the Borrower may make distributions to Holdings for payment directors or consultants of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager U.S. Borrower or the Borrower, as the case may be, and incurred primarily in connection with the business any Subsidiary of the BorrowerU.S. Borrower since the beginning of the relevant Fiscal Year, so long as no Default shall have occurred and is continuing or would occur as a result thereofwhich amounts, if not used in any Fiscal Year, may be carried forward to any subsequent Fiscal Year, (iv) the U.S. Borrower may make distributions pay dividends to Holdings Holdings, at such times and in an amount such amounts (A) not exceeding U.S.$2,500,000 during any Fiscal Year, as shall be necessary to enable permit Holdings to discharge its corporate overhead (including franchise taxes and directors fees) and other permitted liabilities and to make payments permitted by Section 10.09 and (B) as shall be necessary to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries any taxes that are due and payable by Holdings as the parent part of a consolidated groupconsolidated, combined, unitary or similar group that includes the U.S. Borrower or any of its Subsidiaries, to the extent that such taxes relate to the operations of the U.S. Borrower and its Subsidiaries and so long as any refunds received by Holdings attributable to the U.S. Borrower or any of its Subsidiaries shall be promptly returned by Holdings to the U.S. Borrower and (v) [intentionally omitted]without duplication as to amounts distributable with respect to taxes under clause (iv) above, (vi) Potbelly Franchising in the event that Holdings and the U.S. Borrower become pass-through or disregarded entities for U.S. federal income tax purposes, the U.S. Borrower may declare and pay cash dividends make Tax Distributions to Holdings to permit Holdings the extent that the aggregate amount of Tax Distributions made pursuant to invest this clause (v) in respect of any taxable year does not exceed the aggregate amount of U.S. federal, state and local income taxes that would have otherwise been payable by the U.S. Borrower for such cash dividends in the Borrower; provided thattaxable year had it remained a corporation for U.S. federal income tax purposes for such taxable year, in each such case, Holdings actually case as may be approved by the Bankruptcy Court and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Canadian Court.
(b) No Loan Credit Agreement Party will, nor will it permit any Subsidiary of its Subsidiaries to (nor will it apply to the Bankruptcy Court or the Canadian Court for authority to), make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Scheduled Existing Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to each case as may be consummated simultaneously therewith, there is no net cash outflow to Holdings from approved by the Borrower or any other Loan PartyBankruptcy Court and the Canadian Court.
Appears in 2 contracts
Sources: Debtor in Possession Credit Agreement (Cooper-Standard Holdings Inc.), Debt Agreement (Cooper-Standard Holdings Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Other than the payment of amounts payable under the Acquisition Documents as consideration for the Acquisition (or paying a dividend to Holdings to enable Holdings to make any such payment), neither Holdings nor the Borrower will, nor will it they permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) Holdings may make Restricted Payments (and the Borrower may make Restricted Payments to the BorrowerHoldings to enable Holdings to make such Restricted Payments), not exceeding $2,000,000 during any Subsidiary that is a Loan Party may make Restricted Payments fiscal year, pursuant to any and in accordance with stock option plans or other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) benefit plans for management or employees of the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereofits Subsidiaries, (iv) the Borrower may make distributions pay dividends to Holdings at such times and in an amount such amounts, not exceeding $2,000,000 during any fiscal year, as shall be necessary to permit Holdings to pay reasonable administrative expenses incurred in the ordinary course of its business, (v) Holdings may make Restricted Payments (and the Borrower may make Restricted Payments to Holdings to enable Holdings to make such Restricted Payments), not exceeding $5,000,000 in any fiscal year and not exceeding $10,000,000 in the aggregate during the term of this Agreement, to repurchase Equity Interests in Holdings owned by employees or former employees of the Borrower or the Subsidiaries pursuant to the terms of agreements (including employment agreements) with such employees, (vi) the Borrower may make Restricted Payments to Holdings to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable management fees pursuant to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries Management Agreement that are due and payable by Holdings as the parent permitted to be paid pursuant to clause (c) of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investmentsSection 6.09, (vii) the Borrower may make Restricted Payments to Holdings at such times and in such amounts (but not prior to the fifth anniversary of the date of issuance of the Holdings Discount Notes) as shall be necessary to enable Holdings (A) on the fifth anniversary of the date of issuance of the Holdings Discount Notes, to redeem the amount of Holdings Discount Notes equal to the Holdings Discount Notes Redemption Amount and (B) after such fifth anniversary, to make interest payments in cash on such Holdings Discount Notes as and when due; PROVIDED, that at the time of and after giving effect to each Loan Party may purchaseRestricted Payment made in reliance upon this clause (vii), redeem or otherwise acquire the Borrower and its common or preferred Equity Interests Restricted Subsidiaries are in compliance with the proceeds received from covenants contained in Sections 6.12 and 6.13 as of the substantially concurrent issuance end of new common the most recent fiscal quarter for which financial statements are available assuming that Total Debt or preferred Equity Interests Total Senior Debt, as applicable, as of the last day of such quarter had been equal to the Total Debt or where Total Senior Debt, as applicable, as of the consideration is the cancellation date of Indebtedness owed such Restricted Payment after giving effect to any Loan Partysuch Restricted Payment, and (viii) Permitted J/Vs Holdings and the Borrower may make additional Restricted Payments for the purposes contemplated by clauses (iii) through (v) of this Section 6.08(a) in an aggregate amount not to exceed $5,000,000 during the term of this Agreement; PROVIDED that any Restricted Payment otherwise permitted by clause (iii) and clauses (v) through (viii) above shall not be permitted if at the time thereof and after giving effect thereto a Default shall have occurred and be continuing; PROVIDED FURTHER, that the provisions of clauses (iii) through (viii) above that permit certain dividends or other Restricted Payments to Holdings shall not be construed to permit the holders payment of their dividends or other Restricted Payments to any other holder of Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.of the Borrower.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Debt or Existing Notes prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) repayment of all amounts outstanding under the Existing Credit Agreement and purchase of the Existing Notes accepted for payment pursuant to the Debt Tender Offer, in each case on the Effective Date; and
(vvi) repayments on, reductions of, forgiveness redemption of or the termination any Existing Notes that remain outstanding after consummation of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyDebt Tender Offer.
Appears in 2 contracts
Sources: Credit Agreement (Marketing Services Inc), Credit Agreement (American Media Operations Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common stock or preferred stock, Current Redeemable Equity;
(ii) any Subsidiary Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iii) Holdings and the Borrower may make the Restricted Payments (A) contemplated by and permitted under Section 6.04(a)(i), so long as, in each instance, immediately prior to, and after giving effect to, such Restricted Payment, no Default shall exist, and (B) Holdings may make Restricted Payments consisting of Company Notes pursuant to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, Stockholders’ Agreement;
(iiiiv) the Borrower may make distributions pay to Holdings, at such times and in such amounts as shall be necessary, after giving effect to the application by Holdings of any other cash resources available to it (including Permitted Investments), to permit Holdings to
(A) pay taxes imposed upon it and liabilities incidental to its existence (including, without limitation, the premiums of directors’ and officers’ errors and omissions insurance and indemnities owing to officers and directors and expenses in connection with public filings) when due,
(B) pay directors’ fees to its directors and actual operating expenses when due, provided that dividends paid to Holdings for payment the purpose of reasonable paying directors’ fees and actual operating expenses shall not exceed $1,000,000 in any fiscal year,
(C) pay Permitted Management Fees that do not exceed in any fiscal year $1,000,000, plus indemnities and usual and customary out-of-pocket operating expenses provided for under the Permitted Management Agreement,
(D) pay customary and administrative costs reasonable fees and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business Effective Date Transactions and other issuances of equity or Indebtedness in each case permitted by this Agreement and with Permitted Acquisitions,
(E) make Restricted Payments to be made by Holdings that are permitted by clause (iii) above,
(F) make investments in the Tracker Sub described in clause (k) of the Borrowerdefinition of Permitted Investments, and
(G) if at the time thereof and after giving effect thereto no Default has occurred and is continuing, make payments on Holdings Included Indebtedness, provided that any dividends permitted to be paid to Holdings shall not be paid more than five (5) Business Days prior to the date that Holdings will apply the proceeds of such dividends to the purposes for which such dividends are permitted,
(v) the transfer of the stock of the Tracker Sub described in Section 6.05(f);
(vi) Restricted Payments that are part of the Effective Date Transactions;
(vii) Restricted Payments made with the proceeds of contributions to the capital of the applicable Loan Party not more than five (5) Business Days prior to such Restricted Payments, so long as no Default shall have occurred and is continuing then exists or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrowerexist after giving effect thereto; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.and
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;; and
(iv) payment of secured Indebtedness that becomes due as a result prepayment or any other repurchase, redemption or repayment of the voluntary sale or transfer of June 2004 Notes to the property or assets securing such Indebtednessextent permitted by Section 6.14, below; and
(v) repayments on, reductions of, forgiveness purchase (prior to maturity) or prepayment of or Indebtedness (other than Subordinated Indebtedness and Indebtedness under the termination of the Parent Note June 2004 Notes) so long asas immediately prior thereto, in any case, and after giving effect thereto, no Default exists or would exist, unless such purchase or prepayment is made with the proceeds of contribution to any such repaymentthe capital of, reductionas the case may be, forgiveness Holdings or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower not more than five (5) Business Days prior to such purchase or any other Loan Partyprepayment, in which case such purchase or prepayment can be so made.
Appears in 1 contract
Sources: Credit Agreement (Argo Tech Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of the Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares each Subsidiary of its common or preferred stock, (ii) any Subsidiary the Borrower may make Restricted Payments to the Borrower, and to any Subsidiaries of the Borrower that are Guarantors;
(ii) each Non-Guarantor Subsidiary that is a Loan Party of the Borrower may make Restricted Payments to any other Excluded Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, of the Borrower;
(iii) the Borrower and each other Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(iv) payments by Borrower to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager repurchase or the Borrower, as the case may be, and incurred primarily in connection with the business redeem qualified capital stock of the BorrowerBorrower held by officers, so long as directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of Borrower or any of its Subsidiaries, upon their death, disability, retirement, severance or termination of employment or service; provided, that the aggregate cash consideration paid for all such redemptions and repurchases shall not exceed, in any Fiscal Year, $3,000,000;
(v) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and is be continuing or would result therefrom, the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur as upon the exercise or exchange of options, warrants or other similar rights to the extent such Equity Interests represent a result thereofportion of the exercise or exchange price of those options, warrants or other similar rights, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of options, warrants or similar rights; provided that the aggregate cash consideration paid for all such repurchases, redemptions or acquisitions shall not exceed, in any Fiscal Year, $3,000,000; and
(ivvi) the Borrower and its Subsidiaries may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Payments;
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of the Subsidiaries to, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) violation of or in any subordination agreements with respect of principal of or interest on any Indebtednessto, or any payment or other distribution (whether in cashsubordination terms of, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment prepayments of Indebtedness created arising under the Loan Documents;
(ii) payment prepayments of regularly scheduled interest and principal payments as and when due in respect of Indebtedness owed to any Indebtedness;Loan Party; and
(iii) refinancings of Indebtedness to if at the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, time thereof and immediately after giving effect to any such repaymentthereto no Default or Event of Default shall have occurred and be continuing or would result therefrom, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Partyprepayments of Indebtedness permitted under Section 6.01.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) each of Holdings and each Borrower may declare and pay dividends with respect to its common stock payable solely in additional shares of its common stock, and Holdings may declare and pay dividends with respect to its common or preferred stock stock, payable solely in additional shares of such preferred stock or in shares of its common or preferred stock, ;
(ii) any Subsidiary Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iii) the Borrowers may make Restricted Payments to Holdings to permit Holdings to make payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings, the BorrowerBorrowers and their Restricted Subsidiaries in an aggregate amount not to exceed $7,500,000 during any fiscal year;
(iv) Holdings may (A) redeem the Qualified Preferred Stock pursuant to a conversion into common stock of Holdings and (B) make any Restricted Payments in connection with such conversion, any Subsidiary that is a Loan Party in each case, in accordance with the terms of the Qualified Preferred Stock;
(v) the Borrowers may make Restricted Payments to Holdings at such times and in such amounts (A) not exceeding $3,000,000 during any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrowerfiscal year, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount be necessary to enable permit Holdings to discharge its corporate overhead (including franchise taxes and directors fees) and other permitted liabilities and to make payments permitted by Section 6.09 and (B) as shall be necessary to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries any taxes that are due and payable by Holdings as the parent part of a consolidated groupgroup that includes the Borrowers, (v) [intentionally omitted], to the extent that such taxes relate to the operations of the Borrowers and the Restricted Subsidiaries;
(vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in if (A) each of the Borrower; provided that, in each such casePayment Conditions have been satisfied, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchaserepurchase, redeem or otherwise acquire retire its common or preferred outstanding Equity Interests with (and the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs Borrowers may make Restricted Payments the proceeds of which are to be used by Holdings to effect such repurchases, redemptions or retirements) and (B) each of the holders Payment Conditions other than the Payment Condition contained in subsection (b)(iii) of their the definition thereof have been satisfied, Holdings may repurchase, redeem or retire its outstanding Equity Interests so long as such (and the Borrowers may make Restricted Payments the proceeds of which are used by Holdings to effect such repurchases, redemptions or retirements) in an amount not to exceed (during any rolling twelve month period and when combined with Restricted Payments made in reliance on a pro rata basis subsection (vii)(B), below) $25,000,000, which amounts paid under this clause (vi)(B) shall not be included in any future calculation of subsection (b)(iii) of the Payment Conditions; and
(vii) if (A) each of the Payment Conditions have been satisfied, Holdings may declare or pay any other Restricted Payments (and the Borrowers may declare or pay Restricted Payments the proceeds of which are used by Holdings to all make such holders payments) and (B) each of the Payment Conditions other than the Payment Condition contained in accordance subsection (b)(iii) of the definition thereof have been satisfied, Holdings may declare or pay any other Restricted Payments (and the Borrowers may declare or pay Restricted Payments the proceeds of which are used by Holdings to make such payments) in an amount not to exceed (during any rolling twelve month period and when combined with their respective Equity Interests Restricted Payments made in such Permitted J/V.reliance on subsection (vi)(B), above, $25,000,000, which amounts paid under this clause (vii)(B) shall not be included in any future calculation of subsection (b)(iii) of the Payment Conditions.
(b) No Loan Party will, nor will it permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) if (A) the Payment Conditions have been satisfied, the Loan Parties may prepay, redeem, repurchase or retire any Indebtedness of Holdings, any Borrower or any Restricted Subsidiary (including any premium (if any) and accrued and unpaid interest thereon to the date of such repayment, redemption, repurchase or retirement) and (B) each of the Payment Conditions other than the Payment Condition contained in subsection (a)(iii) of the definition thereof have been satisfied, the Loan Parties may prepay, redeem, repurchase or retire any Indebtedness of Holdings, any Borrower or any Restricted Subsidiary (including any premium (if any) and accrued and unpaid interest thereon to the date of such repayment, redemption, repurchase or retirement) in an amount not to exceed $25,000,000 during any rolling twelve month period; and
(vvi) repayments on, reductions of, forgiveness of or the termination of Borrowers may redeem the Parent Note so long as, Existing Senior Subordinated Notes in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from connection with the Borrower or any other Loan Partyredemption described in Section 4.01(o).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings the Borrower or any Restricted Subsidiary may declare and pay Restricted Payments with respect to its Equity Interests payable solely in additional shares or units of its Equity Interests;
(ii) Subsidiaries may declare and pay Restricted Payments ratably with respect to their Equity Interests and may make Restricted Payments to the Borrower or any Restricted Subsidiaries;
(iii) Subsidiaries may declare and pay dividends or make distributions (including pursuant to a tax sharing agreement or similar arrangement) to the extent necessary to permit the Borrower or any other Loan Party to pay any federal, state, local or foreign Taxes of a consolidated, combined, unitary or similar Tax group of which Borrower is the common parent to the extent such dividends or distributions do not exceed the amount the Borrower and its Subsidiaries would have paid as a stand-alone group; provided that payments with respect to any Taxes attributable to any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its common Restricted Subsidiaries for the purposes of paying such Taxes;
(iv) the Borrower or preferred stock payable solely any Restricted Subsidiary may make Restricted Payments if (A) on a Pro Forma Basis after giving effect to such Restricted Payment, the Total Leverage Ratio does not exceed 2.75:1.00 and (B) at the time of such Restricted Payment no Event of Default shall have occurred and be continuing;
(v) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower or any Restricted Subsidiary may make Restricted Payments in additional shares aggregate amount not to exceed the greater of its common (A) $25,000,000 and (B) 1.25% of Consolidated Total Assets of the Borrower (measured as of the date such Restricted Payment is made based upon the financial statements most recently delivered pursuant to Section 5.01(a) or preferred stockSection 5.01(b));
(vi) the Borrower or any Restricted Subsidiary may make Restricted Payments in aggregate amount not to exceed the Available Amount at such time if (A) on a Pro Forma Basis after giving effect to such Restricted Payment, the Total Leverage Ratio does not exceed 3.50:1.00 and (iiB) at the time of such Restricted Payment no Event of Default shall have occurred and be continuing;
(vii) the Borrower or any Restricted Subsidiary may make Restricted Payments to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the Borrower held by any future, present or former employee, director, manager or consultant of the Borrower, any Subsidiary of its Subsidiaries, or their estates or the beneficiaries of such estates, pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement; provided that is a Loan Party may make the aggregate Restricted Payments made under this clause (vii) do not exceed in any calendar year $5,000,000 (with unused amounts in any fiscal year being carried over to succeeding fiscal years and net of any other Subsidiary that is a Loan Party, proceeds received by Holdings and contributed to the Borrower after the Effective Date in connection with resales of any Subsidiary that is not a Loan Party may make Restricted Payments common stock or common stock options purchased pursuant to this clause (vii)) plus all net cash proceeds obtained from any other Subsidiary, key-man life insurance policies received by the Borrower after the Effective Date;
(iiiviii) the Borrower may convert Equity Interests of the Borrower into other Equity Interests of the Borrower and in connection therewith may make distributions to Holdings for its holders in lieu of issuing any fractional Equity Interests;
(ix) to the extent constituting Restricted Payments, the Borrower and its Restricted Subsidiaries may make Investments or consummate transactions permitted by Section 6.01, Section 6.03 or Section 6.04, respectively and may consummate the Transactions;
(x) the Borrower and its Restricted Subsidiaries may make the payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager any dividend or distribution on account of Equity Interests or the Borrowerconsummation of any redemption within 60 days after the date of declaration of the dividend or distribution on account of Equity Interests or giving of the redemption notice, as the case may be, and incurred primarily in connection if at the date of declaration or notice, the dividend, distribution or redemption payment would have complied with the business provisions of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, this Section 6.07; and
(ivxi) the Borrower and its Restricted Subsidiaries may make distributions repurchase Equity Interests deemed to Holdings in an amount necessary occur upon the exercise of stock options, warrants, convertible notes or similar rights to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as the extent such Equity Interests represent a result of) the operations portion of the Borrowerexercise price of those stock options, warrants or similar rights or the Manager and their Subsidiaries that are due and payable by Holdings as the parent payment of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.related withholding taxes.
(b) No Loan Party will, nor will it permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) prepayment of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property)Indebtedness for borrowed money, including any sinking fund or similar deposit, on account of the purchaseearly repurchase, redemption, retirement, acquisition, cancellation or termination of any IndebtednessIndebtedness for borrowed money (other than any intercompany Indebtedness owed to or by the Borrower or any Restricted Subsidiary) that (i) by its terms is subordinated in right of payment to the Term Loan Obligations, (ii) secured on a junior lien basis by Liens on the Collateral (excluding for the avoidance of doubt, the ABL obligations), or (iii) unsecured except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iiiii) refinancings of Indebtedness Refinancings to the extent permitted by Section 6.01;
(iviii) payment payments of secured Indebtedness that becomes due as a result of an Event of Loss or the voluntary sale or transfer of the property or assets securing such Indebtedness;
(iv) payments made in connection with the consummation of the Transactions;
(v) so long as no Event of Default has occurred and is continuing or would result therefrom, other payments not exceeding in the aggregate the greater of (A) $25,000,000 and (B) 1.25% of Consolidated Total Assets of the Borrower (measured as of the date such payment is made based upon the financial statements most recently delivered pursuant to Section 5.01(a) or Section 5.01(b));
(vi) the Borrower or any Restricted Subsidiary may make payments in respect of Indebtedness in an aggregate amount not to exceed the Available Amount at such time if (A) on a Pro Forma Basis after giving effect to such payment of Indebtedness, the Total Leverage Ratio does not exceed 3.50:1.00 and (B) at the time of such payment of Indebtedness no Event of Default shall have occurred and be continuing;
(vii) any payment of Indebtedness incurred in reliance on Section 6.01(n)) if such Indebtedness is issued into escrow pending completion of any such Permitted Acquisition or Investment, in connection with the termination of escrow and redemption of such Indebtedness pursuant to the terms thereof; and
(vviii) repayments on, reductions of, forgiveness of payments made by converting or the termination of the Parent Note so long as, in any case, after giving effect to exchanging any such repayment, reduction, forgiveness or termination any other transactions Indebtedness to be consummated simultaneously therewith, there is no net cash outflow to Holdings from Equity Interests of the Borrower or any other Loan Partyof its Parent Entities.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party None of BC Holdings or the BC Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Subsidiaries may declare and pay dividends or make distributions ratably with respect to their capital stock or membership interests, (ii) the BC Borrower may make Restricted Payments, not exceeding $5,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the BC Borrower and the Subsidiaries, (iii) the BC Borrower may make distributions to BC Holdings at such times and in such amounts, not exceeding $5,000,000 during any fiscal year, as shall be necessary to permit BC Holdings to discharge its permitted liabilities, (iv) BC Holdings may redeem its Equity Interests and may make distributions to FPH so that FPH may make such redemptions of Equity Interests of FPH, in each case from former members of management, former employees, or former directors of Loan Parties, and the BC Borrower may make distributions to BC Holdings as necessary to fund such redemptions, PROVIDED that the aggregate amount applied for all such purposes shall not exceed $3,000,000 during any fiscal year, (v) BC Holdings and the BC Borrower may pay (by distribution or otherwise) management fees to Madison Dearborn of up to $1,000,000 in the aggregate in any fiscal year, (vi) distributions by the BC Borrower to BC Holdings to pay directors' out-of-pocket expenses and indemnification obligations owing to directors, (vii) the BC Borrower may make distributions to BC Holdings, and BC Holdings may in turn make distributions to FPH, (A) not exceeding $500,000 in the aggregate during any fiscal year, at such times as shall be necessary to permit FPH to discharge its corporate maintenance obligations and (B) not exceeding $500,000 in the aggregate during any fiscal year, at such times as shall be necessary to permit FPH to discharge its obligations related to its portion of common expenses shared with BC Holdings or the BC Borrower, (viii) for so long as BC Holdings is a pass-through or disregarded entity for United States Federal income tax purposes, the BC Borrower may make distributions to BC Holdings, and BC Holdings shall in turn be permitted, to make Tax Distributions in respect of any taxable year of BC Holdings equal to the product of (A) the amount of taxable income allocated to the Members for such taxable year, less the amount of taxable loss allocated to the Members for all prior taxable years (except to the extent such taxable losses have previously been taken into account under this provision), times (B) the highest aggregate marginal statutory Federal, state and local income tax rate (determined taking into account the deductibility of state and local income taxes for Federal income tax purposes) to which any of the direct or indirect Members of BC Holdings who is an individual is subject for such year; and BC Holdings shall be permitted to make such Tax Distributions pursuant to this clause (viii) on a quarterly basis during such taxable year based on the best estimate of the chief financial officer of BC Holdings of the amounts specified in clauses (A) and (B) above; PROVIDED that if the aggregate amount of the estimated Tax Distributions made in any taxable year of BC Holdings exceeds the actual maximum amount of Tax Distributions for that year as finally determined, the amount of any Tax Distributions in the succeeding taxable year (or, if necessary, any subsequent taxable years) shall be reduced by the amount of such excess, (ix) after consummation of the Contemplated IPO, the BC Borrower and BC Holdings may declare or make, agree to pay or make, or incur obligations to make, Restricted Payments in cash; PROVIDED that (A) the aggregate amount of such Restricted Payments under this clause (ix) (including those made by the Holding Companies, the BC Borrower or the Timber Borrower under clause (xiii) of Section 6.08 of the First Restated Credit Agreement) plus the aggregate amount of cash consideration applied pursuant to clause (vii) of Section 6.08(b) shall not exceed the aggregate Net Proceeds received from the Contemplated IPO and (B) all such Restricted Payments under this clause (ix) must be made within 180 days after the date of consummation of the Contemplated IPO, (x) after consummation of the Contemplated IPO, BC Holdings may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Partycash, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the BC Borrower may make distributions to BC Holdings for payment to fund such dividends; PROVIDED that (A) at the time of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdingsafter giving effect to any such dividend, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereofbe continuing, (ivB) subject to clause (C) below, at the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state time of and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repaymentdividend, reduction, forgiveness or termination any other transactions the aggregate amount of dividends paid in reliance upon this clause (x) since the First Restatement Effective Date shall not exceed an amount equal to be consummated simultaneously therewith, there is no net cash outflow to Holdings the sum of (1) 50% of the Consolidated Net Income accrued during the period (treated as one accounting period) from the Original Effective Date to the end of the most recent fiscal quarter ending prior to the date of such dividend for which internal financial statements are available (or, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus (2) in the event of the occurrence of a Prepayment Event described in clause (c) of the definition of the term Prepayment Event, an amount equal to 50% of the Net Proceeds from such Prepayment Event and (C) dividends may be paid in reliance upon this clause (x) in an aggregate amount of up to $35,000,000 notwithstanding whether such dividends would be permitted by clause (B) above, but any such dividends paid in reliance upon this clause (C) shall be included in determining whether any dividends may be paid in reliance upon clause (B) above and (xi) after consummation of the Contemplated IPO, the BC Borrower or may make distributions to BC Holdings, and BC Holdings may in turn make distributions to FPH at such times as shall be necessary to permit FPH to reimburse the expenses of Madison Dearborn incurred in connection with the consummation of the Contemplated IPO, but any other Loan Partysuch distributions shall be deducted in calculating Net Proceeds from the Contemplated IPO.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Boise Cascade Holdings, L.L.C.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares of its common or preferred stock, Equity Interests in Holdings;
(ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, their capital stock;
(iii) the Parent Borrower may make distributions payments to Holdings to permit it to make, and Holdings may make, Restricted Payments, not exceeding $5,000,000 during the term of this Agreement, in each case pursuant to and in accordance with stock option plans, equity purchase programs or agreements or other benefit plans, in each case for payment management or employees or former employees of reasonable out-of-pocket operating the Parent Borrower and the Subsidiaries;
(iv) the Parent Borrower may make Permitted Tax Distributions to Holdings or any other direct or indirect equity owners of the Parent Borrower;
(v) the Parent Borrower may pay dividends to Holdings at such times and in such amounts as shall be necessary to permit Holdings to discharge and satisfy its obligations that are permitted hereunder (including (A) state and local taxes and other governmental charges, and administrative costs and routine expenses required to be paid by Holdings in the ordinary course of business and (B) cash dividends payable by HoldingsHoldings in respect of Qualified Holdings Preferred Stock issued pursuant to clauses (b) and (c) of the definition thereof; provided that dividends payable by the Parent Borrower to Holdings pursuant to this clause (iv) in order to satisfy cash dividends payable by Holdings in respect of Qualified Holdings Preferred Stock issued pursuant to clause (c) of the definition thereof may only be made after the fiscal year ending December 31, 2011, with Excess Cash Flow not otherwise required to be used to prepay Term Loans pursuant to Section 2.11(e)); and
(vi) the Manager or the Borrower, as the case Parent Borrower may bemake payments to Holdings to permit it to make, and incurred primarily in connection with Holdings may make payments permitted by Sections 6.09(d), (e), (f) and (g); provided that, at the business time of the Borrowersuch payment and after giving effect thereto, so long as no Default or Event of Default shall have occurred and is be continuing or would occur as a result thereofand Holdings and the Parent Borrower are in compliance with Section 6.12; provided, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when duefurther, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations that any payments that are prohibited because of the Borrowerimmediately preceding proviso shall accrue and may be made as so accrued upon the curing or waiver of such Default, the Manager and their Subsidiaries that are due and payable by Holdings as the parent Event of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem Default or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.noncompliance.
(b) No Loan Party None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result (other than the Senior Secured Notes and Replacement Senior Secured Notes) out of the voluntary proceeds of any sale or transfer of the property or assets securing such Indebtedness;
(v) payment in respect of Capital Lease Obligations in an aggregate amount not to exceed $25,000,000 during the term of this Agreement less the amount of Capital Expenditures made pursuant to Section 6.14(c)(i);
(vi) payments in respect of (I) the Senior Secured Notes using proceeds from the issuance of Replacement Senior Secured Notes and (II) the Senior Secured Notes, the Replacement Senior Secured Notes or the repurchase, retirement or other acquisition of Equity Interests in Holdings using (A) the portion of Excess Cash Flow not subject to mandatory prepayment pursuant to Section 2.11(e) or (B) any source of cash (to the extent not otherwise prohibited in this Agreement) up to an amount not to exceed (x) if after giving effect to such payment, the Leverage Ratio would be (1) less than 2.25 to 1.00, $100,000,000, (2) less than 2.75 to 1.00, but greater than or equal to 2.25 to 1.00, $75,000,000 and (3) less than 3.25 to 1.00 but greater than or equal to 2.75 to 1.00, $50,000,000 and (y) otherwise, $15,000,000; and
(vvii) repayments onpayments of Indebtedness with the Net Proceeds of an issuance of Equity Interests in Holdings.
(c) None of Holdings, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyForeign Subsidiary Borrower will, nor will they permit any Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic Purchase Agreement related to any Equity Interest of Holdings, the payments required to be made by Holdings are limited to amounts permitted to be paid under Section 6.08(a), (ii) in the case of any Synthetic Purchase Agreement related to any Restricted Indebtedness, the payments required to be made by Holdings, the Parent Borrower or the Subsidiaries thereunder are limited to the amount permitted under Section 6.08(b) and (iii) in the case of any Synthetic Purchase Agreement, the obligations of Holdings, the Parent Borrower and the Subsidiaries thereunder are subordinated to the Obligations on terms satisfactory to the Required Lenders.
Appears in 1 contract
Sources: Credit Agreement (Trimas Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings the Borrower may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower may make distributions Restricted Payments, not exceeding a cumulative aggregate amount of $15,000,000 pursuant to Holdings and in accordance with stock option plans or other benefit plans for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager management or the Borrower, as the case may be, and incurred primarily in connection with the business employees of the Borrower, so long as no Default shall have occurred Borrower and is continuing or would occur as a result thereofthe Subsidiaries, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated groupSpecial Dividend, (v) [intentionally omitted], (vi) Potbelly Franchising the Borrower may declare and pay regular quarterly dividends with respect to the Convertible Preferred Stock (payable in cash dividends to Holdings to permit Holdings to invest such cash dividends in or shares of Convertible Preferred Stock or common stock of the Borrower) from time to time; provided that, in each the case of any cash dividend, no Default shall have occurred and be continuing at the time such casedividend is declared or at the time such dividend is paid (after giving effect to the declaration and making of such dividend), Holdings actually (vi) the Borrower may declare and promptly uses pay regular quarterly dividends with respect to its common stock from time to time in an aggregate amount not to exceed $5,000,000 during any fiscal quarter, if (A) no Default shall have occurred and be continuing at the time such dividends for dividend is declared or at the time such investmentsdividend is made (after giving effect to the declaration and making of such dividend) and (B) (I) the Required Leverage Ratio shall be satisfied at the time such dividend is declared and at the time such dividend is made and (II) the Required Fixed Charge Coverage Ratio shall be satisfied at the time such dividend is declared and at the time such dividend is paid; provided that if the Required Leverage Ratio and the Required Fixed Charge Coverage Ratio are both satisfied at the time such dividend is declared but not satisfied at the time such dividend is made, this clause (B) will not prevent the Borrower from paying such dividend if the date of payment of such dividend is no more than 30 days after the date of declaration of such dividend and (vii) each Loan Party the Borrower may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.the Borrower or options with respect thereto in exchange for Equity Interests in the Borrower or options for Equity Interests in the Borrower.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;; and
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness prepayments of Capital Lease Obligations with respect to real estate interests in Stores or with respect to equipment for the termination purpose of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from enabling the Borrower or any other Loan Partya Subsidiary to acquire such real estate interests or equipment.
Appears in 1 contract
Sources: Credit Agreement (Blockbuster Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, ;
(ii) any Subsidiary Subsidiaries of the Borrower may make Restricted Payments to the BorrowerBorrower and to wholly owned Subsidiaries of the Borrower and may declare and pay dividends ratably with respect to their Equity Interests;
(iii) if at the time thereof and after giving effect thereto no Default has occurred and is continuing, the Borrower may pay dividends or make loans to Holdings at such times and in such amounts, not exceeding $1,000,000 during any Subsidiary that fiscal year, as shall be necessary to permit Holdings to discharge its permitted liabilities (other than to make any payments with respect to the Holdings Senior Discount Debentures);
(iv) following April 15, 2003, if at the time thereof and after giving effect thereto no Default has occurred and is a Loan Party continuing, the Borrower may pay dividends or make loans to Holdings at such times and in such amounts, not exceeding $14,420,000 during any fiscal year, as shall be necessary to permit Holdings to pay, as and when due, interest on the Holdings Senior Discount Debentures accrued subsequent to April 15, 2003;
(v) Holdings may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings and its Subsidiaries, including the redemption or purchase of shares of common stock of Holdings held by former employees of Holdings or any Subsidiary following the termination of their employment, if (A) at the time thereof and after giving effect thereto no Default has occurred and is continuing and (B) after giving effect to any other Subsidiary that is a Loan Partysuch Restricted Payment, and any Subsidiary that is not a Loan Party may make the aggregate cumulative amount of Restricted Payments made pursuant to this clause (v) shall not exceed the sum of (1) $2,000,000 during any other Subsidiaryfiscal year or (2) $10,000,000 in the aggregate from the Effective Date, plus the amount of Net Cash Proceeds received by Holdings and its Subsidiaries after the Effective Date and prior to making such Restricted Payment from the issuance of additional shares of its common stock to members of management or employees of Holdings and its Subsidiaries; provided that the promissory notes permitted under Section 6.04(g) may be forgiven or returned without regard to the limitation in clause (iiiB) above and the forgiveness or return thereof shall not be treated as Restricted Payments for purposes of determining compliance with such clause (B) above;
(vi) the Borrower may pay cash dividends or make distributions loans to Holdings for payment of reasonable out-of-pocket operating in such amounts and administrative costs at such times as Holdings makes Restricted Payments permitted by clause (v) above;
(vii) if at the time thereof and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as after giving effect thereto no Default shall have has occurred and is continuing continuing, the Borrower may pay dividends or make loans to Holdings in such amounts and at such times as required to permit Holdings to pay, as and when due, income taxes payable by Holdings with respect to the consolidated, combined tax filing group that includes the Borrower and its Subsidiaries; provided that dividends or loans pursuant to this clause (vii) shall not at any time exceed the amount of income taxes that would occur as then be payable by the Borrower and its Subsidiaries if the Borrower and its Subsidiaries were not a result thereofpart of a consolidated, combined tax filing group with Holdings or any other Person; and
(ivviii) the Borrower may pay cash dividends or make distributions loans to Holdings in an amount necessary such amounts and at such times as Holdings makes payments to enable purchase Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising Senior Discount Debentures as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable permitted by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, clauses (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Section 6.07(b).
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness other than payments in respect of the Existing Subordinated Debt, the Additional Subordinated Debt or the Replacement Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and;
(v) repayments onpayment of interest on the Holdings Senior Discount Debentures payable solely by the issuance by Holdings of additional Holdings Senior Discount Debentures, reductions ofprovided that after April 15, forgiveness 2003, Holdings will be permitted to pay interest in cash on the Holdings Senior Discount Debentures as and when due;
(vi) payment of intercompany Indebtedness between or among the termination Borrower and its Subsidiaries permitted under clause (iv) of Section 6.01(a) and payment of Indebtedness permitted under clauses (viii) and (ix) of Section 6.01(a);
(vii) payments to purchase Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes; provided that (A) at the Parent Note so long astime of and after giving effect to each such purchase of Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes, as the case may be, (1) no Default shall have occurred and be continuing and (2) the Borrower and its Subsidiaries are in any casecompliance, on a pro forma basis after giving effect to any such repaymentpayments (and any Public Offering made, reductionReplacement Subordinated Debt incurred or Incremental Loans borrowed to effect any such payments), forgiveness with the covenants contained in Sections 6.13, 6.14, 6.15 and 6.17 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, as if such payment (and any Public Offering made, Replacement Subordinated Debt incurred or termination Incremental Loans borrowed to effect any such payments) had occurred on the first day of each relevant period for testing such compliance; and (B) all Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes, as the case may be, so purchased shall be retired and canceled;
(viii) payments, in an aggregate amount not exceeding the portion of the Net Cash Proceeds of an IPO reserved for such purpose in accordance with the proviso to Section 2.11(b), to purchase Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes within 365 days after the date of such IPO; provided that (A) at the time of and after giving effect to each such purchase of Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes, as the case may be, no Default shall have occurred and be continuing; (B) all Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes, as the case may be, so purchased shall be retired and canceled; and (C) for purposes of determining the amount of the Net Cash Proceeds of such IPO applied to purchase Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes as permitted by this clause (viii), the aggregate amount of such payments shall be calculated excluding the aggregate amount of accrued and unpaid interest on the Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes so purchased that is discharged as a result of such purchase;
(ix) [intentionally omitted];
(x) the issuance of Equity Interests in Holdings to any holder of Holdings Senior Discount Debentures in exchange for Holdings Senior Discount Debentures; provided that (A) at the time of and after giving effect to such exchange, no Default shall have occurred and be continuing, (B) such exchange shall not be made in connection with any issuance of Equity Interests in Holdings to other transactions investors for cash consideration, (C) such exchange is made on an arm's length basis with unrelated third parties and (D) all Holdings Senior Discount Debentures so exchanged shall be retired and canceled; and
(xi) the repayment of (A) all amounts outstanding under the Existing Credit Agreement and (B) all amounts outstanding in respect of the Existing DAP Indebtedness, including accrued interest and fees and any prepayment penalties and all amounts necessary to terminate the DAP Synthetic Lease Agreement and purchase the property subject thereto.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic Purchase Agreement related to any Equity Interest of Holdings, the payments required to be consummated simultaneously therewithmade by Holdings are limited to amounts permitted to be paid under Section 6.07(a), there is no net cash outflow (ii) in the case of any Synthetic Purchase Agreement related to Holdings from any Restricted Indebtedness, the payments required to be made by Holdings, the Borrower or the Subsidiaries thereunder are limited to the amount permitted under Section 6.07(b) and (iii) in the case of any other Loan PartySynthetic Purchase Agreement, the obligations of Holdings, the Borrower and the Subsidiaries thereunder are subordinated to the Obligations on terms satisfactory to the Required Lenders.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Company will not, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings the Company may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stockEquity Interests, (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower Company may make distributions payments to Holdings for payment holders of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, not more than $5,000,000 in stated value of preferred stock of the Manager or Company that are required to be made as a result of the Borrower, as the case exercise of appraisal rights to which they may be, and incurred primarily be entitled in connection with the business Recapitalization, (iv) the Company or its Subsidiaries may make Restricted Payments, not exceeding $5,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the BorrowerCompany and its Subsidiaries, (v) the Company may pay dividends in an amount not exceeding $25,000,000 during any fiscal year so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted]be continuing, (vi) Potbelly Franchising the Company may declare carry out the Class B Repurchase and pay cash dividends the Recapitalization; PROVIDED that such transactions are completed on or prior to Holdings December 31, 2002 and (vii) the Company may repurchase stock and make other Restricted Payments during any fiscal year with that portion of Excess Cash Flow for the preceding fiscal year not required to permit Holdings be applied to invest prepay Borrowings under the Term Loan Agreement (but in no event in an amount greater than 50% of Consolidated Net Income for such cash dividends preceding fiscal year) so long as (A) no Default shall have occurred and be continuing, (B) the Company shall demonstrate pro forma compliance with the covenant set forth in Section 6.13 (but with the Borrower; provided thatapplicable ratio reduced by 0.25) and (C) the Company shall have Ratings of at least BBB- and Baa3, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests case with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.stable outlook.
(b) No Loan Party willThe Company will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any IndebtednessDebt, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any IndebtednessDebt, except:
(i) payment payments in respect of Indebtedness Debt created under the Loan Documents, the Term Loan Agreement or the Existing 364-Day Credit Agreement;
(ii) payment payments in respect of regularly scheduled Debt owed to the Company or any Subsidiary;
(iii) required interest and principal payments as and when due in respect of other Debt, other than payments in respect of any Indebtedness;
(iii) refinancings of Indebtedness Debt subordinated to the extent permitted Obligations that is prohibited by Section 6.01;the applicable subordination provisions; and
(iv) payment prepayments of secured Indebtedness Debt with the net proceeds of new Debt permitted hereunder to the extent such net proceeds are not required to be applied to prepay Borrowings under the Term Loan Agreement; PROVIDED that becomes due as a result (A) the obligors in respect of such new Debt do not include Subsidiaries that are not obligors in respect of the voluntary sale or transfer Debt so prepaid, (B) the maturity of such new Debt shall not be earlier, and the weighted average life of such new Debt shall not be shorter, than that of the property or assets securing Debt so prepaid and (C) if the Debt so prepaid shall have been subordinated to the Obligations, then such Indebtedness; andnew Debt shall likewise be so subordinated on terms not less favorable to the Lenders.
(vc) repayments onNeither the Company nor any Subsidiary shall enter into or be party to, reductions ofor make any payment under, forgiveness of or any Synthetic Purchase Agreement, except that the termination Company may enter into any Synthetic Purchase Agreement related to any Equity Interest of the Parent Note Company so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions as the payments required to be consummated simultaneously therewithmade thereunder, there is no net cash outflow to Holdings from if they constituted payments in respect of the Borrower or any other Loan Partypurchase of Equity Interests of the Company, would be permitted under clause (vii) of paragraph (a) above.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party None of Holdings, the Parent Borrower or any Foreign Subsidiary Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may (x) declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares Equity Interests of Holdings, (y) repurchase Equity Interests not to exceed $10,000,000 from former shareholders of its common existing or preferred stock, (ii) any Subsidiary may make Restricted Payments former Subsidiaries that received such Equity Interests of Holdings prior to the Borrowerdate hereof and (z) repurchase the preferred stock of Holdings in an aggregate amount not to exceed $20,000,000, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Partyprovided that, at the time of such repurchase and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiaryafter giving effect thereto, (iii) the Borrower may make distributions to Holdings for payment no Default or Event of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is be continuing and Holdings and the Parent Borrower are in compliance with Sections 6.13 and 6.14;
(ii) Subsidiaries may declare and pay dividends ratably with respect to their capital stock;
(iii) the Parent Borrower may make payments to Holdings to permit it to make, and Holdings may make, Restricted Payments, not exceeding $2,000,000 during any fiscal year (provided that such amount shall be increased, in respect of the fiscal year ending on December 31, 2002, and each fiscal year thereafter by an amount equal to the total unused amount of such Restricted Payments for the immediately preceding fiscal year (without giving effect to the amount of any unused amounts that were carried forward to such preceding fiscal year) not to exceed in the aggregate $16,000,000), in each case pursuant to and in accordance with stock option plans, equity purchase programs or would occur as a result thereofagreements or other benefit plans, in each case for management or employees or former employees of the Parent Borrower and the Subsidiaries; 121
(iv) the Parent Borrower may make distributions pay dividends to Holdings at such times and in an amount such amounts (A) as shall be necessary to enable Holdings to pay when due, make payments permitted by clause (z) of Section 6.08(a)(i) and Sections 6.08(a)(v) and (vi) and (B) as shall be necessary to permit Holdings to discharge its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, other permitted liabilities;
(v) [intentionally omitted]Holdings may pay Holdings Preferred Dividends and interest in respect of its Indebtedness permitted hereunder, provided that, at the time of such payment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and Holdings and the Parent Borrower are in compliance with Sections 6.13 and 6.14;
(vi) Potbelly Franchising Holdings may declare make payments to the extent contemplated by the Recapitalization Agreement, including payments in respect of the restricted stock granted pursuant to the Restricted Stock Obligation (including payments in respect of the Restricted Stock Obligation after the date such payments were scheduled to have been made), provided that, at the time of such payment in respect of the Restricted Stock Obligation and after giving effect thereto, no Event of Default shall have occurred and be continuing;
(vii) Holdings may (x) pay cash dividends the Saturn Proceeds Distribution and (y) repurchase, redeem, repay or otherwise retire the Convertible Debentures with Available Funds, proceeds from Permitted Subordinated Notes or issuances or sales of capital stock of Holdings; and
(viii) Parent Borrower may make payments to Holdings to permit it to make, and Holdings to invest such cash dividends in the Borrowermay make payments permitted by Sections 6.09(f), (g), (h) and (i); provided that, at the time of such payment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and Holdings and the Parent Borrower are in each compliance with Sections 6.13 and 6.14; provided, further that any payments that are prohibited because of the immediately preceding proviso shall accrue and may be made as so accrued upon the curing or waiver of such caseDefault, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem Event of Default or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.noncompliance.
(b) No Loan Party None of Holdings, the Parent Borrower or any Foreign Subsidiary Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisitionacquisi tion, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) the repurchase, redemption, repayment or other retirement of the Convertible Debentures as permitted by Section 6.08(a)(vii);
(iii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the subordinated Indebtedness prohibited by the subordination provisions thereof;
(iiiiv) refinancings of Indebtedness to the extent permitted by Section 6.01;; and
(ivv) payment of secured Indebtedness that becomes due as a result out of the voluntary proceeds of any sale or transfer of the property or assets securing such Indebtedness; and.
(vc) repayments onNone of Holdings, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyForeign Subsidiary Borrower will, nor will they permit any Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic Purchase Agreement related to any Equity Interest of Holdings, the payments required to be made by Holdings are limited to amounts permitted to be paid under Section 6.08(a), (ii) in the case of any Synthetic Purchase Agreement related to any Restricted Indebtedness, the payments required to be made by Holdings, the Parent Borrower or the Subsidiaries thereunder are limited to the amount permitted under Section 6.08(b) and (iii) in the case of any Synthetic Purchase Agreement, the obligations of Holdings, the Parent Borrower and the Subsidiaries thereunder are subordinated to the Obligations on terms satisfactory to the Required Lenders.
Appears in 1 contract
Sources: Credit Agreement (Metaldyne Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares of its common or preferred stock, Equity Interests in Holdings;
(ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, their capital stock;
(iii) the Parent Borrower may make distributions payments to Holdings to permit it to make, and Holdings may make, Restricted Payments, not exceeding $5,000,000 during the term of this Agreement, in each case pursuant to and in accordance with stock option plans, equity purchase programs or agreements or other benefit plans, in each case for payment management or employees or former employees of reasonable out-of-pocket operating the Parent Borrower and the Subsidiaries;
(iv) the Parent Borrower may make Permitted Tax Distributions to Holdings or any other direct or indirect equity owners of the Parent Borrower;
(v) the Parent Borrower may pay dividends to Holdings at such times and in such amounts as shall be necessary to permit Holdings to discharge and satisfy its obligations that are permitted hereunder (including (A) state and local taxes and other governmental charges, and administrative costs and routine expenses required to be paid by Holdings in the ordinary course of business and (B) cash dividends payable by HoldingsHoldings in respect of Qualified Holdings Preferred Stock issued pursuant to clauses (b) and (c) of the definition thereof; provided that dividends payable by the Parent Borrower to Holdings pursuant to this clause (v) in order to satisfy cash dividends payable by Holdings in respect of Qualified Holdings Preferred Stock issued pursuant to clause (c) of the definition thereof may only be made after the fiscal year ending December 31, 2013, with Excess Cash Flow not otherwise required to be used to prepay Term Loans pursuant to Section 2.11(d)) (without duplication of amounts used pursuant to Section 6.08(ba)(v)(Avii) or amounts included in the Manager Available Amount and used pursuant to Sections 6.04(s), 6.08(a)(vii) or 6.08(b)(vii));
(vi) the Borrower, as the case Parent Borrower may bemake payments to Holdings to permit it to make, and incurred primarily in connection with Holdings may make payments permitted by Sections 6.09(d), (e), (f) and (g); provided that, at the business time of the Borrowersuch payment and after giving effect thereto, so long as no Default or Event of Default shall have occurred and is be continuing and Holdings and the Parent Borrower are in compliance with Section 6.12; provided, further, that any payments that are prohibited because of the immediately preceding proviso shall accrue and may be made as so accrued upon the curing or would occur as a result thereofwaiver of such Default, Event of Default or noncompliance; and
(ivvii) (A) the Parent Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends payments to Holdings to permit it to make, and Holdings may make Restricted, Ppayments in an aggregate amount not to invest such cash dividends exceed respect of the repurchase, retirement or other acquisition of Equity Interests in Holdings using the portion of Excess Cash Flow not subject to mandatory prepayment pursuant to Section 2.11(d) (without duplication of amounts used pursuant to Section 6.08(a)(v) or amounts included in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, Available Amount and (viiiB) Permitted J/Vs Holdings may make Restricted Payments with the proceeds of Restricted Payments made to it by the Borrower pursuant to clause (A); provided that in the case of both clauses (A) and (B), at the time of such payment and after giving effect thereto, (i) no Default or Event of Default shall have occurred and be continuing and (ii) at the time of such payment and after giving effect thereto and to the holders incurrence of their Equity Interests so long as any Indebtedness in connection therewith, the Leverage Ratio is not greater than 2.00 to 1.00.used pursuant to Sections 6.04(s) or 6.08(b)(vii));
(viii) the Parent Borrower may make payments to Holdings to permit it to make, and Holdings may make, Restricted Payments; provided that (x) if after giving effect to such Restricted Payments are (and any Indebtedness incurred in connection therewith), the Leverage Ratio at the time of the making such payments (the date of the making of such payments, the “RP Date”) would be (1) less than or equal to 2.25 to 1.00 but greater than 2.00 to 1.00, the aggregate amount of Restricted Payments made on a pro rata basis pursuant to all this clause (viii) during the period from the date 12 months prior to the RP Date through (and including) the RP Date (such holders in accordance with their respective Equity Interests in such Permitted J/V.period, the “RP Period”) shall not exceed $125,000,000, (2) less than or equal to 2.75 to 1.00, but greater than 2.25 to 1.00, the aggregate amount of Restricted Payments made pursuant to this clause (viii) during the RP Period shall not exceed $100,000,000, (3) less than or equal to 3.25 to 1.00 but greater than 2.75 to 1.00, the aggregate amount of Restricted Payments made pursuant to this clause (viii) during the RP Period shall not exceed $50,000,000 and (4) greater than 3.25 to 1.00, the aggregate amount of Restricted Payments made pursuant to this clause (viii) during the RP Period shall not exceed $25,000,000; provided further that at the time of any payment pursuant to this clause (viii), no Default or Event of Default shall have occurred and be continuing.
(b) No Loan Party None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result out of the voluntary proceeds of any sale or transfer of the property or assets securing such Indebtedness; and;
(v) repayments on, reductions of, forgiveness of or the termination payments in respect of the Parent Note so long asrepurchase, retirement or other acquisition of Equity Interests in Holdings using (A) the portion of Excess Cash Flow not subject to mandatory prepayment pursuant to Section 2.11(d) (without duplication of amounts used pursuant to Section 6.08(a)(v) or amounts included in the Available Amount and used pursuant to Sections 6.04(s), 6.08(a)(vii) or 6.08(b)(vii)) or (B) any case, source of cash (to the extent not otherwise prohibited in this Agreement) up to an amount not to exceed (x) if after giving effect to any such repaymentpayment, reductionthe Leverage Ratio would be (1) less than 2.25 to 1.00, forgiveness $100,000,000, (2) less than 2.75 to 1.00, but greater than or termination any other transactions equal to be consummated simultaneously therewith2.25 to 1.00, there is no net cash outflow $75,000,000 and (3) less than 3.25 to Holdings from the Borrower 1.00 but greater than or any other Loan Party.equal to 2.75 to 1.00, $50,000,000 and (y) otherwise, $15,000,000;
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to its common or preferred stock payable solely in additional shares of its common or preferred stocktheir Equity Interests, (ii) any Subsidiary provided no Default or Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments to the BorrowerUltimate Parent, provided that (A) the proceeds of such Restricted Payments are used to repurchase, redeem, or otherwise acquire or retire for value Equity Interests in the Ultimate Parent held by any future, present or former directors, officers, members of management, employees or consultants of the Ultimate Parent or the Service Company or their respective estates, heirs, family members, spouses or former spouses pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement, (B) (x) any Restricted Payments used to effect such repurchases, redemptions, acquisitions or retirements are made not earlier than ten Business Days prior to the date when such Equity Interests are repurchased, redeemed, acquired or retired, if such repurchase, redemption, acquisition or retirement is made and (y) if such Restricted Payments are not used for such repurchase, redemption, acquisition or retirement, the proceeds therefrom shall be returned to the Borrower as a capital contribution within ten Business Days from the date such Restricted Payment was made, (C) the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year pursuant to this clause (ii) (other than (1) any such Equity Interests repurchased, redeemed, acquired or retired in compensation for any taxes due or payable by the holder thereof, and (2) any such Equity Interests that are deemed repurchased, redeemed, acquired or retired by the Ultimate Parent in connection with the exercise of stock options or warrants by the holder thereof in connection with the payment of all or a portion of the exercise price of such options or warrant) will not exceed $1,000,000 per year and (D) such Equity Interests shall only be repurchased, redeemed, acquired or retired in connection with the death, resignation or retirement of, or settlement of a dispute with, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarysuch Person, (iii) Restricted Payments in amounts as shall be necessary to make Tax Payments; provided that all Restricted Payments made pursuant to this clause (iii) are used by the recipient for the purpose specified in this clause (iii) within 30 days of receipt thereof, (iv) provided no Default or Event of Default is continuing or would result therefrom, the Borrower may from time to time pay cash dividends or distributions to the Ultimate Parent in an amount not in excess of the lesser of (x) the Ultimate Parent Annual Cash Interest Amount and (y) the regularly scheduled cash interest payable (taking into account the Ultimate Parent PIK Election made pursuant to Section 6.17(j)) on the Restructuring Notes (or any Additional Notes incurred to refinance such Restructuring Notes) during the next period of ten Business Days, provided, however, that (A) any such dividends or distributions relating to any such cash interest payment must be paid not earlier than ten Business Days prior to the date when such cash interest is required to be paid by the Ultimate Parent and the proceeds must (except to the extent prohibited by applicable subordination provisions) be applied by the Ultimate Parent, to the payment of such interest when due, (B) the Borrower and its Subsidiaries shall be in Pro Forma Compliance after giving effect to the payment of any such dividends or distributions pursuant to this clause (iv) and (C) in no event may the amount of any such dividend or distribution made pursuant to this clause (iv) relating to any such cash interest payment exceed 37% of the amount of such cash interest paid by the Ultimate Parent when due, (v) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, Restricted Payments as the case may be, and incurred primarily in connection with the business part of the Borrower, so long as no Default shall have occurred Shared Services Transactions and is continuing or would occur as a result thereof, (ivvi) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders Ultimate Parent in an aggregate amount not to exceed $2,000,000 during any fiscal year of their Equity Interests so long as the Borrower, provided that (A) no Default or Event of Default is continuing or would result therefrom, (B) the aggregate amount of Restricted Payments made pursuant to this clause (vi) shall not exceed $5,000,000 over the term of this Agreement, (C) the Ultimate Parent shall apply such Restricted Payments are within 30 days of receipt thereof and only to fund general corporate expenses permitted hereunder and (D) no Restricted Payments made on pursuant to this clause (vi) shall be used to (x) effect the repurchase, or the making of any payments in respect, of Restructuring Notes or Additional Notes or (y) make any payment to or Investment in any Affiliate other than the Borrower or a pro rata basis to all Subsidiary of the Borrower (or any director, officer or employee of any such holders in accordance with their respective Equity Interests in such Permitted J/V.Affiliate).
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of subordinated Indebtedness to the extent prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) prepayment of Capital Lease Obligations in an aggregate cumulative amount from and after the Closing Date not exceeding $5,000,000;
(vi) payment of any Indebtedness owing to the Service Company arising pursuant to the Shared Services Transactions; and
(vvii) repayments on, reductions of, forgiveness payment of or the termination of the Parent Note so long as, in any case, after giving effect Indebtedness owing to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Subsidiary Loan Party.
(c) The Borrower will not, and will not permit any Subsidiary to, furnish any funds to, make any Investment in, or provide other consideration to any other Person for purposes of enabling such Person to, or otherwise permit any such Person to, make any Restricted Payment or other payment or distribution restricted by this Section that could not be made directly by the Borrower in accordance with the provisions of this Section.
(d) Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, the Loan Parties shall be permitted to make all distributions required to be made by the Loan Parties on or after the Closing Date (pursuant to the Reorganization Plan and the Confirmation Order).
Appears in 1 contract
Sources: Credit Agreement (Dex Media, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of the Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares each Subsidiary of its common or preferred stock, (ii) any Subsidiary the Borrower may make Restricted Payments to the Borrower, and to any Subsidiaries of the Borrower that are Guarantors;
(ii) each Non-Guarantor Subsidiary that is a Loan Party of the Borrower may make Restricted Payments to any other Excluded Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, of the Borrower;
(iii) the Borrower and each other Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(iv) payments by Borrower to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager repurchase or the Borrower, as the case may be, and incurred primarily in connection with the business redeem qualified capital stock of the BorrowerBorrower held by officers, so long as directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of Borrower or any of its Subsidiaries, upon their death, disability, retirement, severance or termination of employment or service; provided, that the aggregate cash consideration paid for all such redemptions and repurchases shall not exceed, in any Fiscal Year, $5,000,000;
(v) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and is be continuing or would result therefrom, the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur as upon the exercise or exchange of options, warrants or other similar rights to the extent such Equity Interests represent a result thereofportion of the exercise or exchange price of those options, warrants or other similar rights, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of options, warrants or similar rights; provided that the aggregate cash consideration paid for all such repurchases, redemptions or acquisitions shall not exceed, in any Fiscal Year, $3,000,000;
(ivvi) MediaMind and its Subsidiaries may directly or indirectly repurchase stock options pursuant to Section 3.05(a) of the Merger Agreement in respect of the Equity Interests of MediaMind existing on or prior to the Effective Date in an aggregate amount not to exceed $70,000,000, with the proceeds of the MediaMind Intercompany Notes pursuant to the Recharge Agreement;
(vii) the Borrower and its Subsidiaries may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the BorrowerPermitted Restricted Payments; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and and
(viii) Permitted J/Vs may make Restricted Payments in an aggregate amount not to exceed the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Corporate Basket Amount;
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of the Subsidiaries to, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) violation of or in any subordination agreements with respect of principal of or interest on any Indebtednessto, or any payment or other distribution (whether in cashsubordination terms of, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment prepayments of Indebtedness created arising under the Loan Documents;
(ii) payment prepayments of regularly scheduled interest and principal payments as and when due in respect of Indebtedness owed to any Indebtedness;Loan Party; and
(iii) refinancings of Indebtedness to if at the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, time thereof and immediately after giving effect to any such repaymentthereto no Default or Event of Default shall have occurred and be continuing or would result therefrom, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Partyprepayments of Indebtedness permitted under Section 6.01.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrowers will, nor will it they permit any other Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings may declare and pay dividends with respect to its common or preferred stock Capital Stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary Restricted Subsidiaries may make Restricted Payments declare and pay dividends ratably to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any holders of their Capital Stock (other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarythan Holdings), (iii) the Borrower Holdings may make distributions Restricted Payments, not exceeding $5,000,000 in any fiscal year of Holdings pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereofRestricted Subsidiaries, (iv) Restricted Subsidiaries may pay dividends to Holdings at such times and in such amounts consistent with past practice as shall be necessary to permit Holdings to pay taxes and administrative expenses attributable to the Borrower operations of the Subsidiaries; provided that such payments shall not exceed amounts paid in the ordinary course of business prior to the date hereof and (v) Restricted Subsidiaries may make distributions pay dividends to Holdings in an aggregate amount sufficient to fund the payment of interest in respect of the Indebtedness under the Holdings Indentures, which interest is due or becomes due within 30 days from the date of payment of each such dividend, provided, however, that no Default exists at the time such dividends are paid (provided further, however, that such dividends shall not be prohibited hereby for more than 180 days in any consecutive 360-day period unless either an Event of Default consisting of a payment default exists hereunder or the maturity of the Loans has been accelerated), and (vi) provided that no Default exists or would result therefrom, Restricted Subsidiaries may pay dividends to Holdings at such times and in such amounts as are necessary to enable for Holdings to pay make timely payment when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) due in respect of Indebtedness of Holdings permitted by Section 6.01 other than Indebtedness under the operations Holdings Indentures; provided that payments in respect of the Borrower, the Manager and their Subsidiaries that are due and payable Holdings Indentures shall be governed solely by Holdings as the parent of a consolidated group, clause (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.immediately preceding.
(b) No Loan Party Neither Holdings nor the Borrowers will, nor will it they permit any other Restricted Subsidiary to, to make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, Indebtedness or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;, other than payments in respect of the subordinated debt prohibited by the subordination provisions thereof; and
(iiiii) refinancings of Indebtedness to the extent permitted by Section 6.01;.
(ivc) Neither Holdings nor the Borrowers will, nor will they permit any other Restricted Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect Synthetic Purchase Agreement related to any such repaymentEquity Interest, reduction, forgiveness or termination any other transactions the payments required to be consummated simultaneously therewith, there is no net cash outflow to Holdings from made by the Borrower or any other Loan PartyRestricted Subsidiaries are limited to amounts permitted to be paid under this Section 6.08, (ii) in the case of any Synthetic Purchase Agreement related to any Restricted Indebtedness, the payments required to be made by the Borrower or any Restricted Subsidiaries thereunder are limited to the amount permitted under this Section 6.08 and (iii) in the case of any Synthetic Purchase Agreement, the obligations of the Borrower and the Subsidiaries thereunder are subordinated to the Secured Obligations on terms satisfactory to the Administrative Agent.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) Holdings may make Restricted Payments (and the Borrower may make Restricted Payments to the BorrowerHoldings to enable Holdings to make such Restricted Payments), not exceeding $2,000,000 during any Subsidiary that is a Loan Party may make Restricted Payments fiscal year, pursuant to any and in accordance with stock option plans or other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) benefit plans for management or employees of the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereofits Subsidiaries, (iv) the Borrower may make distributions pay dividends to Holdings at such times and in an amount such amounts, not exceeding $2,000,000 during any fiscal year, as shall be necessary to permit Holdings to pay reasonable administrative expenses incurred in the ordinary course of its business, (v) Holdings may make Restricted Payments (and the Borrower may make Restricted Payments to Holdings to enable Holdings to pay when duemake such Restricted Payments), its actual federalnot exceeding $2,000,000 in any fiscal year or $4,000,000 in the aggregate from the Restatement Effective Date, state and local income Taxes directly attributable to (repurchase Equity Interests in Holdings owned by employees or arising as a result of) the operations former employees of the Borrower, Borrower or the Manager and their Subsidiaries that are due and payable by Holdings as pursuant to the parent terms of a consolidated groupagreements (including employment agreements) with such employees, (vvi) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs Borrower may make Restricted Payments to Holdings, and any Restricted Subsidiary may make Restricted Payments to any Restricted Subsidiary, the holders of their Equity Interests so long as Borrower or to Holdings, to pay any Tax with respect to income attributable to the party making such Restricted Payments are made as the result of such party being a member of a consolidated, affiliated or unitary group (for tax purposes) that includes Holdings as its parent, (viii) [intentionally deleted], (ix) the Borrower may pay, prepay, redeem or acquire (including the payment of any premiums required under Section 2.11(g)) any Indebtedness permitted under Section 6.01(a)(i) with the Net Proceeds of, or in exchange for Permitted Refinancing Indebtedness, (x) the Borrower may pay, prepay, redeem or acquire any Existing Subordinated Debt or Permitted Refinancing Indebtedness incurred pursuant to Section 6.01(a)(vii) with (A) the Net Proceeds of (or, in the case of Permitted Refinancing Indebtedness, in exchange for) Permitted Refinancing Indebtedness (provided that such Permitted Refinancing Indebtedness shall not be issued with original issue discount (other than in the case of any incurrence of Indebtedness which constitutes Indebtedness of the type described in (c) of the definition of “Prepayment Event”), or fees in lieu thereof), or (B) in the case of Existing Subordinated Debt only, cash on hand, but, in the case of this clause (x)(B), only if, after giving effect to any Restricted Payment permitted by this clause (x)(B), any 2002 Senior Subordinated Notes or 2003 Senior Subordinated Notes so paid, prepaid, redeemed or acquired constitute all 2002 Senior Subordinated Notes or 2003 Senior Subordinated Notes, as applicable, that remain outstanding at the time (provided, in the case of each payment, prepayment, redemption or acquisition permitted by this clause (x), that any Indebtedness so paid, prepaid, redeemed or acquired is cancelled and retired), and (xi) the Borrower may pay, prepay, redeem, or acquire Indebtedness to the extent permitted under Section 6.08(b)(iv); provided further that any Restricted Payment otherwise permitted by clause (iii) and clauses (v) through (xi) above shall not be permitted if at the time thereof and after giving effect thereto a pro rata basis Default shall have occurred and be continuing; provided further, that the provisions of clauses (iii) through (xi) above that permit certain dividends or other Restricted Payments to all such holders in accordance with their respective Holdings shall not be construed to permit the payment of dividends or other Restricted Payments to any other holder of Equity Interests in such Permitted J/V.of the Borrower.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest or premium on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments and any mandatory prepayments and mandatory offers to purchase (including any premiums required under the documents governing such Indebtedness), in each case as and when due (or thereafter) in respect of any Indebtedness (including, without limitation, any regularly scheduled interest payments which Holdings, the Borrower or such Restricted Subsidiary may elect to pay in cash or by the issuance of additional Indebtedness), other than (x) payments in respect of the Subordinated Debt prohibited by the subordination provisions thereof, or (y) any cash payments prior to the later of (1) the Term Maturity Date or (2) April 30, 2013 in respect of any PIK Senior Notes or any Permitted Holdings Debt (or any Permitted Refinancing Indebtedness of either of the foregoing); provided, however, that notwithstanding anything herein to the contrary, the cash portion of interest that may be paid on any Permitted Refinancing Indebtedness shall not exceed the thresholds set forth in the definition of the term “Permitted Refinancing Indebtedness”;
(iii) refinancings of Indebtedness to the extent that the Indebtedness incurred to refinance such other Indebtedness is permitted by under Section 6.01;
(iv) to the extent not required to be used to repay the Loans pursuant to Section 2.11, refinancings of Indebtedness with the Net Proceeds of any issuance of Equity Interests by Holdings to any Person other than the Borrower or any Restricted Subsidiary;
(v) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(vi) repayment of all amounts outstanding under the Existing Credit Agreement;
(vii) payments made to pay, prepay, redeem or acquire Indebtedness pursuant to and in compliance with clause (ix) or (x) of paragraph (a) of this Section; provided that any Indebtedness so prepaid, redeemed or acquired is cancelled and retired;
(viii) payment of cash interest to holders of any Permitted Refinancing Indebtedness of Existing Subordinated Debt (including subsequent Permitted Refinancing Indebtedness thereof) pursuant to the PIK Toggle Feature thereof at the rate permitted by the definition of the term “Permitted Refinancing Indebtedness”, if Excess Cash Flow for the most recently completed fiscal year is greater than $27,500,000; and
(vix) repayments on, reductions of, forgiveness payments made in satisfaction of or the termination obligations under Section 4.03(e)(ii) of the Parent Note so long as, indenture governing the 2002 Senior Subordinated Notes or Section 4.03(e)(ii) of the 2003 Senior Subordinated Notes in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is the aggregate amount of no net cash outflow to Holdings from the Borrower or any other Loan Partygreater than $2,000,000.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any other Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur enter into any obligation (contingent or otherwise) transaction the economic effect of which is substantially similar to do soany Restricted Payment, except (i) Holdings and the Borrower may declare and pay dividends with respect to its common or preferred their capital stock payable solely in additional shares of its their respective common or preferred stock, (ii) any Subsidiary may make Restricted Payments to Subsidiaries (other than the Borrower, any Subsidiary that is a Loan Party ) may make Restricted Payments declare and pay dividends ratably with respect to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower Holdings may make distributions Restricted Payments, not exceeding $3,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, Restricted Subsidiaries; (iv) so long as no Default shall have occurred and is be continuing or would occur as a result thereoffrom the making of such payment, (iv) the Borrower may make distributions pay dividends to Holdings at such times and in an amount such amounts as shall be necessary to enable permit Holdings to pay when duedischarge, to the extent permitted hereunder, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, permitted liabilities; (v) [intentionally omitted]on and after the Leverage Target Date, (vi) Potbelly Franchising Holdings may declare and pay dividends in cash with respect to its convertible preferred stock outstanding as of the Amendment No. 4 Effective Date in an amount not exceeding $40,000,000 in any fiscal year and the Borrower may declare and pay dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually declare and promptly uses pay such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viiivi) Permitted J/Vs at any time after the consummation of the Structured Note Financing, the Borrower may make Restricted Payments declare and pay a dividend to the holders of their Equity Interests Holdings so long as (x) the aggregate amount of such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of dividend shall not exceed the principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account amount of the purchaseStructured Note Bridge Indebtedness outstanding at the time such dividend is paid plus accrued interest thereon, redemption(y) no Default has occurred and is continuing or would result therefrom and (z) immediately upon receipt thereof, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result Holdings shall apply all of the voluntary sale or transfer proceeds of such dividend to repay in full the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Structured Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyBridge Indebtedness then outstanding.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Williams Companies Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings the Borrower may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares of its common or preferred stock, Equity Interests in the Borrower;
(ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, their capital stock;
(iii) the Borrower may make distributions to Holdings for payment of reasonable out-pay the premium in respect of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrowermay otherwise perform its obligations under, so long as no Default shall have occurred and is continuing or would occur as a result thereof, any Permitted Bond Hedge Transaction;
(iv) the Borrower may repay Convertible Notes with cash or otherwise make distributions payments or deliveries in shares of common stock and/or cash required by the terms of, and otherwise perform its obligations under, the Convertible Notes Indenture (including, without limitation, making payments of interest and principal thereon and/or making deliveries (in shares of common stock and/or cash) due upon conversion thereof); provided that if any such payments are made in cash using internally generated cash or Excess Availability (under and as defined in the ABL Credit Agreement), the Borrower shall repay any ABL Loans used to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations repay any Convertible Notes within 60 days of the Borrower, date of repayment with the Manager and their Subsidiaries that are due and payable by Holdings as the parent proceeds of a consolidated group, Delayed Draw Term Loan; and
(v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with Transactions on the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Closing Date.
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of subordinated Indebtedness or any other Indebtedness subject to an intercreditor agreement prohibited by the subordination provisions thereof or such intercreditor agreement;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment or satisfaction of intercompany Indebtedness in connection with the dissolutions, liquidations and/or mergers contemplated by Section 6.03(a)(iv);
(v) payment of or in respect of (A) Indebtedness created under the ABL Loan Documents and (B) Indebtedness or obligations secured Indebtedness that becomes due as a result by the ABL Security Documents;
(vi) the Borrower may issue common stock on account of the voluntary sale or transfer termination of the property guarantees made by Cequent Industria e Comercio Ltda. in connection with the Quota Purchase and Sale Agreement, dated October 29, 2013;
(vii) any repayment, prepayment or assets securing such Indebtednessforgiveness of the PPP Loan or any interest thereon; and
(vviii) repayments on, reductions the Borrower may make payments or deliveries in shares of common stock and/or cash required by the terms of, forgiveness and otherwise perform its obligations under, the Convertible Notes Indenture (including, without limitation, making payments of interest and principal thereon and/or making deliveries (in shares of common stock and/or cash) due upon conversion thereof).
(c) The Borrower will not, nor will it permit any Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless, in the termination case of any Synthetic Purchase Agreement related to any Equity Interests of the Parent Note so long asBorrower, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions the payments required to be consummated simultaneously therewith, there is no net cash outflow to Holdings from made by the Borrower or any other Loan Partyare limited to amounts permitted to be paid under Section 6.08(a).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayment which would occur during the period beginning on the Effective Date and ending on the date that is one year after the Maturity Date, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings the Borrower may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, ;
(ii) the Borrower may make Restricted Payments to cancel, redeem, acquire or repurchase shares of common stock of the Borrower held by, or stock options granted to, directors and employees of the Borrower in the event of death, disability, termination of employment or retirement of any Subsidiary such director or employee; provided that the aggregate amount of such Restricted Payments shall not exceed $1,000,000 in any fiscal year;
(iii) the Borrower may apply the proceeds of Replacement Mezzanine Securities to redeem common stock warrants (or shares of common stock issued upon the exercise thereof) issued by the Borrower contemporaneously with the Mezzanine Securities pursuant to the Mezzanine Securities Documents; and
(iv) Subsidiaries may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments Borrower and to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) wholly owned Subsidiaries of the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends ratably with respect to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.capital stock.
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any IndebtednessMezzanine Securities or Replacement Mezzanine Securities, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any IndebtednessMezzanine Securities or Replacement Mezzanine Securities which would occur during the period beginning on the Effective Date and ending on the date that is one year after the Maturity Date, except:
(i) payment the Borrower may redeem the Mezzanine Securities with the Net Cash Proceeds of Indebtedness created under an IPO if such IPO is consummated within six months after the Loan DocumentsEffective Date and such redemption is made promptly following receipt of such Net Cash Proceeds;
(ii) payment the Borrower may pay accrued interest on Mezzanine Securities or Replacement Mezzanine Securities by the issuance of regularly scheduled interest and principal payments additional Mezzanine Securities or Replacement Mezzanine Securities, as and when due applicable, in respect of any Indebtedness;accordance with the Mezzanine Securities Documents or Replacement Mezzanine Securities Documents, as applicable; and
(iii) refinancings the Borrower may redeem or otherwise repay Mezzanine Securities with the proceeds of Indebtedness to the extent permitted by Section 6.01;
one or more substantially contemporaneous issuances of an equal principal amount (iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long asor, in any casethe case of preferred stock, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Partyliquidation preference) of Replacement Mezzanine Securities in accordance with this Agreement.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower may make distributions pay management fees to Holdings Granaria or any of its Affiliates in an aggregate amount not to exceed $1,750,000 during any fiscal year and reimburse Granaria or any of its Affiliates for payment of their reasonable out-of-pocket operating and administrative costs and expenses payable by relating to their management of Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower or any Subsidiary may make distributions to Holdings Restricted Payments, in an aggregate amount necessary not to enable Holdings exceed $1,000,000 during any fiscal year, pursuant to pay when due, its actual federal, state and local income Taxes directly attributable to (in accordance with the stock plans of employees or arising as a result of) directors who terminate their employment with the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated groupBorrower or such Subsidiary, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs Borrower may make Restricted Payments to Holdings at such times and in such amounts as shall be necessary to permit Holdings to (A) pay Preferred Dividends to the holders extent permitted by clause (vi) of their this Section 6.08(a) and (B) discharge its permitted liabilities (other than in respect of the Existing Preferred Stock or Refinancing Preferred Stock) during any fiscal year and (vi) Holdings may (1) make Restricted Payments for the purpose of purchasing, redeeming or refinancing the Existing Preferred Stock solely with the proceeds of Refinancing Preferred Stock issued pursuant to Section 6.01(c) or common Equity Interests so long (it being understood and agreed that any shares of Existing Preferred Stock purchased or redeemed pursuant to this clause (vi) shall immediately be canceled by the Borrower) and (2) declare and pay Preferred Dividends, provided that, immediately prior to and immediately after giving effect to such payment of Preferred Dividends, (x) no Default shall have occurred or be continuing as of such Restricted Payments are made on a pro rata basis date and (y) the Leverage Ratio shall not exceed 3.00 to all 1.00 as of such holders in accordance with their respective Equity Interests in such Permitted J/V.date.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) payments in respect of the repurchase of Subordinated Debt that remains outstanding after the Effective Date (it being understood and agreed that any Subordinated Debt purchased pursuant to this clause (v) shall immediately be canceled by the Borrower);
(vi) prepayment of the Industrial Revenue Bonds;
(vii) prepayment of BV Loans in an aggregate principal amount of up to $5,000,000; provided that no Event of Default shall have occurred and be continuing; and
(vviii) repayments on, reductions of, forgiveness payments in respect of or any Permitted Receivables Financing in accordance with the termination terms of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyPermitted Receivables Documents.
Appears in 1 contract
Sources: Credit Agreement (Epmr Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any domestic Subsidiary to, to declare or makepay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, or agree to pay make any payment on account of, or makeset apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Equity Interests or Subordinated Debt of any Loan Party or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of any Loan Party or any Subsidiary (collectively, “Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments”), except that:
(i) Holdings may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common or preferred stock, (iia) any domestic Subsidiary may make Restricted Payments to the BorrowerBorrower or any wholly owned Subsidiary Guarantor;
(b) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may purchase its common stock or common stock options from present or former officers or employees of any Loan Party or any Subsidiary upon the death, disability or termination of employment of such officer or employee, provided, that is a Loan Party the aggregate amount of payments under this clause (b) after the date hereof (net of any proceeds received by the Borrower after the date hereof in connection with resales of any common stock or common stock options so purchased) shall not exceed $250,000 in any fiscal year of the Borrower;
(c) the Borrower may make Restricted Payments acquire Equity Interests of the Borrower in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with the satisfaction of withholding tax obligations; and
(d) so long as (i) no Event of Default exists or would result therefrom, (ii) no Default exists or would result therefrom due to any other Subsidiary that is a Loan Party, compliance with the Fixed Charge Coverage Ratio set forth in Section 6.17 and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment has Availability of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, at least $15,000,000 after giving effect to any such repaymentdividends, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Partymay pay dividends to its shareholders.”
Appears in 1 contract
Sources: Credit Agreement (Superior Offshore International Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, ;
(ii) any Subsidiary Subsidiaries of the Borrower may make Restricted Payments to the BorrowerBorrower and to wholly owned Subsidiaries of the Borrower and may declare and pay dividends ratably with respect to their Equity Interests;
(iii) if at the time thereof and after giving effect thereto no Default has occurred and is continuing, the Borrower may pay dividends or make loans to Holdings at such times and in such amounts, not exceeding $1,000,000 during any Subsidiary that fiscal year, as shall be necessary to permit Holdings to discharge its permitted liabilities (other than to make any payments with respect to the Holdings Senior Discount Debentures);
(iv) following April 15, 2003, if at the time thereof and after giving effect thereto no Default has occurred and is a Loan Party continuing, the Borrower may pay dividends or make loans to Holdings at such times and in such amounts, not exceeding $14,420,000 during any fiscal year, as shall be necessary to permit Holdings to pay, as and when due, interest on the Holdings Senior Discount Debentures accrued subsequent to April 15, 2003;
(v) Holdings may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings and its Subsidiaries, including the redemption or purchase of shares of common stock of Holdings held by former employees of Holdings or any Subsidiary following the termination of their employment, if (A) at the time thereof and after giving effect thereto no Default has occurred and is continuing and (B) after giving effect to any other Subsidiary such Restricted Payment, the aggregate cumulative amount of Restricted Payments made pursuant to this clause (v) shall not exceed the sum of (1) $2,000,000 during any fiscal year or (2) $10,000,000 in the aggregate from the Effective Date, plus the amount of Net Cash Proceeds received by Holdings and its Subsidiaries after the Effective Date and prior to making such Restricted Payment from the issuance of additional shares of its common stock to members of management or employees of Holdings and its Subsidiaries; provided that the promissory notes permitted under Section 6.04(g) may be forgiven or returned without regard to the limitation in clause (B) above and the forgiveness or return thereof shall not be treated as Restricted Payments for purposes of determining compliance with such clause (B) above;
(vi) the Borrower may pay cash dividends or make loans to Holdings in such amounts and at such times as Holdings makes Restricted Payments permitted by clause (v) above and clause (ix) below;
(vii) if at the time thereof and after giving effect thereto no Default has occurred and is a Loan Partycontinuing, the Borrower may pay dividends or make loans to Holdings in such amounts and at such times as required to permit Holdings to pay, as and when due, income taxes payable by Holdings with respect to the consolidated, combined tax filing group that includes the Borrower and its Subsidiaries; provided that dividends or loans pursuant to this clause (vii) shall not at any Subsidiary time exceed the amount of income taxes that is would then be payable by the Borrower and its Subsidiaries if the Borrower and its Subsidiaries were not a Loan Party part of a consolidated, combined tax filing group with Holdings or any other Person;
(viii) the Borrower may pay cash dividends or make loans to Holdings in such amounts and at such times as Holdings makes payments to purchase Holdings Senior Discount Debentures as permitted by clauses (vii) and (viii) of Section 6.07(b); and
(ix) if at the time thereof and after giving effect thereto no Default has occurred and is continuing, Holdings may make Restricted Payments in cash from time to any other Subsidiarytime after the Restatement Effective Date in addition to those otherwise permitted under this Section 6.07(a); provided that after giving effect to each Restricted Payment made under this clause (ix), (iiia) the cumulative amount of all such Restricted Payments does not exceed the lesser of (i) the sum of $25,000,000 plus (in the case of any Restricted Payments made after financial statements are available for the fiscal year ending January 3, 2004) 25% of Consolidated Net Income for the period commencing on January 1, 2003 through the last fiscal quarter prior to the date of such Restricted Payment as to which financial statements are available and (ii) $100,000,000; and (b) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily shall be in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made compliance on a pro rata forma basis with Sections 6.13, 6.14, 6.15 and 6.17 after giving effect to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Restricted Payment.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest interest, stated premiums and principal payments as and when due in respect of any IndebtednessIndebtedness other than payments in respect of the Existing Subordinated Debt, the Additional Subordinated Debt or the 101 Replacement Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and;
(v) repayments onpayment of interest on the Holdings Senior Discount Debentures payable solely by the issuance by Holdings of additional Holdings Senior Discount Debentures, reductions ofprovided that after April 15, forgiveness 2003, Holdings will be permitted to pay interest in cash on the Holdings Senior Discount Debentures as and when due;
(vi) payment of intercompany Indebtedness between or among the termination Borrower and its Subsidiaries permitted under clause (iv) of Section 6.01(a) and payment of Indebtedness permitted under clauses (viii) and (ix) of Section 6.01(a);
(vii) payments to purchase or redeem Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes; provided that (A) at the Parent Note so long astime of and after giving effect to each such purchase or redemption of Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes, as the case may be, (1) no Default shall have occurred and be continuing and (2) the Borrower and its Subsidiaries are in any casecompliance, on a pro forma basis after giving effect to any such repaymentpayments (and any Public Offering made or Replacement Subordinated Debt incurred), reductionwith the covenants contained in Sections 6.13, forgiveness 6.14, 6.15 and 6.17 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, as if such payment (and any Public Offering made or termination Replacement Subordinated Debt incurred to effect any such payments) had occurred on the first day of each relevant period for testing such compliance; and (B) all Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes, as the case may be, so purchased or redeemed shall be retired and canceled;
(viii) payments, in an aggregate amount not exceeding the portion of the Net Cash Proceeds of an IPO reserved for such purpose in accordance with the proviso to Section 2.11(b), to purchase Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes within 365 days after the date of such IPO; provided that (A) at the time of and after giving effect to each such purchase of Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes, as the case may be, no Default shall have occurred and be continuing; (B) all Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes, as the case may be, so purchased shall be retired and canceled; and (C) for purposes of determining the amount of the Net Cash Proceeds of such IPO applied to purchase Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes as permitted by this clause (viii), the aggregate amount of such payments shall be calculated excluding the aggregate amount of accrued and unpaid interest on the Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes so purchased that is discharged as a result of such purchase;
(ix) the issuance of Equity Interests in Holdings to any holder of Holdings Senior Discount Debentures in exchange for Holdings Senior Discount Debentures; provided that (A) at the time of and after giving effect to such exchange, no Default shall have occurred and be continuing, (B) such exchange shall not be made in connection with any issuance of Equity Interests in Holdings to other transactions investors for cash consideration, (C) such exchange is made on an arm's length basis with unrelated third parties and (D) all Holdings Senior Discount Debentures so exchanged shall be retired and canceled; and
(x) the repayment of (A) all amounts outstanding in respect of the Existing DAP Indebtedness, including accrued interest and fees and any prepayment penalties and all amounts necessary to terminate the DAP Synthetic Lease Agreement and purchase the property subject thereto.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic Purchase Agreement related to any Equity Interest of Holdings, the payments required to be consummated simultaneously therewithmade by Holdings are limited to amounts permitted to be paid under Section 6.07(a), there is no net cash outflow (ii) in the case of any Synthetic Purchase Agreement related to Holdings from any Restricted Indebtedness, the payments required to be made by Holdings, the Borrower or the Subsidiaries thereunder are limited to the amount permitted under Section 6.07(b) and (iii) in the case of any other Loan PartySynthetic Purchase Agreement, the obligations of Holdings, the Borrower and the Subsidiaries thereunder are subordinated to the Obligations on terms satisfactory to the Required Lenders.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party None of BC Holdings or the BC Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Subsidiaries may declare and pay dividends or make distributions ratably with respect to their capital stock or membership interests, (ii) the BC Borrower may make Restricted Payments, not exceeding $5,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the BC Borrower and the Subsidiaries, (iii) the BC Borrower may make distributions to BC Holdings at such times and in such amounts, not exceeding $5,000,000 during any fiscal year, as shall be necessary to permit BC Holdings to discharge its permitted liabilities, (iv) BC Holdings may redeem its Equity Interests and may make distributions to FPH so that FPH may make such redemptions of Equity Interests of FPH, in each case from former members of management, former employees, or former directors of Loan Parties, and the BC Borrower may make distributions to BC Holdings as necessary to fund such redemptions, provided that the aggregate amount applied for all such purposes shall not exceed $3,000,000 during any fiscal year, (v) BC Holdings and the BC Borrower may pay (by distribution or otherwise) management fees to Madison Dearborn of up to $1,000,000 in the aggregate in any fiscal year, (vi) distributions by the BC Borrower to BC Holdings to pay directors’ out-of-pocket expenses and indemnification obligations owing to directors, (vii) the BC Borrower may make distributions to BC Holdings, and BC Holdings may in turn make distributions to FPH, (A) not exceeding $500,000 in the aggregate during any fiscal year, at such times as shall be necessary to permit FPH to discharge its corporate maintenance obligations and (B) not exceeding $500,000 in the aggregate during any fiscal year, at such times as shall be necessary to permit FPH to discharge its obligations related to its portion of common expenses shared with BC Holdings or the BC Borrower, (viii) for so long as BC Holdings is a pass-through or disregarded entity for United States Federal income tax purposes, the BC Borrower may make distributions to BC Holdings, and BC Holdings shall in turn be permitted, to make Tax Distributions in respect of any taxable year of BC Holdings equal to the product of (A) the amount of taxable income allocated to the Members for such taxable year, less the amount of taxable loss allocated to the Members for all prior taxable years (except to the extent such taxable losses have previously been taken into account under this provision), times (B) the highest aggregate marginal statutory Federal, state and local income tax rate (determined taking into account the deductibility of state and local income taxes for Federal income tax purposes) to which any of the direct or indirect Members of BC Holdings who is an individual is subject for such year; and BC Holdings shall be permitted to make such Tax Distributions pursuant to this clause (viii) on a quarterly basis during such taxable year based on the best estimate of the chief financial officer of BC Holdings of the amounts specified in clauses (A) and (B) above; provided that if the aggregate amount of the estimated Tax Distributions made in any taxable year of BC Holdings exceeds the actual maximum amount of Tax Distributions for that year as finally determined, the amount of any Tax Distributions in the succeeding taxable year (or, if necessary, any subsequent taxable years) shall be reduced by the amount of such excess, (ix) after consummation of the Contemplated IPO, the BC Borrower and BC Holdings may declare or make, agree to pay or make, or incur obligations to make, Restricted Payments in cash; provided that (A) the aggregate amount of such Restricted Payments under this clause (ix) (including those made by the Holding Companies, the BC Borrower or the Timber Borrower under clause (xiii) of Section 6.08 of the First Restated Credit Agreement) plus the aggregate amount of cash consideration applied pursuant to clause (vii) of Section 6.08(b) shall not exceed the aggregate Net Proceeds received from the Contemplated IPO and (B) all such Restricted Payments under this clause (ix) must be made within 180 days after the date of consummation of the Contemplated IPO, (x) after consummation of the Contemplated IPO, BC Holdings may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Partycash, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the BC Borrower may make distributions to BC Holdings for payment to fund such dividends; provided that (A) at the time of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdingsafter giving effect to any such dividend, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereofbe continuing, (ivB) subject to clause (C) below, at the time of and after giving effect to any such dividend, the aggregate amount of dividends paid in reliance upon this clause (x) since the First Restatement Effective Date shall not exceed an amount equal to the sum of (1) 50% of the Consolidated Net Income accrued during the period (treated as one accounting period) from the Original Effective Date to the end of the most recent fiscal quarter ending prior to the date of such dividend for which internal financial statements are available (or, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus (2) in the event of the occurrence of a Prepayment Event described in clause (c) of the definition of the term Prepayment Event, an amount equal to 50% of the Net Proceeds from such Prepayment Event and (C) dividends may be paid in reliance upon this clause (x) in an aggregate amount of up to $35,000,000 notwithstanding whether such dividends would be permitted by clause (B) above, but any such dividends paid in reliance upon this clause (C) shall be included in determining whether any dividends may be paid in reliance upon clause (B) above and (xi) after consummation of the Contemplated IPO, the BC Borrower may make distributions to BC Holdings, and BC Holdings may in an amount turn make distributions to FPH at such times as shall be necessary to enable Holdings permit FPH to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) reimburse the operations expenses of Madison Dearborn incurred in connection with the consummation of the BorrowerContemplated IPO, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest but any such cash dividends distributions shall be deducted in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received calculating Net Proceeds from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Contemplated IPO.
(b) No Loan Party Neither BC Holdings nor the BC Borrower will, nor will it the BC Borrower permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer or involuntary condemnation of the property or assets securing such Indebtedness;
(v) [Intentionally Omitted];
(vi) payment of Indebtedness to the BC Borrower or a Subsidiary; and
(vvii) repayments on, reductions of, forgiveness of or the termination after consummation of the Parent Note so long asContemplated IPO, in any case, after giving effect the BC Borrower may redeem or repurchase Senior Unsecured Debt or Subordinated Debt for cash consideration; provided that (A) the aggregate amount applied for such purposes plus the aggregate amount of Restricted Payments made pursuant to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings clause (ix) of Section 6.08(a) shall not exceed the aggregate Net Proceeds received from the Borrower Contemplated IPO, (B) all such redemptions and repurchases must be made within 180 days after the date of consummation of the Contemplated IPO and (C) any Senior Unsecured Debt or any other Loan PartySubordinated Debt so redeemed or repurchased shall be retired and cancelled.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Boise Cascade Holdings, L.L.C.)
Restricted Payments; Certain Payments of Indebtedness. Section 6.08 of the Agreement is hereby amended by substituting the following new clause (a) in lieu of the like existing clause (a) :
(a) No Loan Party will, nor will it permit any Subsidiary to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or enter into any transaction that has a substantially similar effect or incur any obligation (contingent or otherwise) to do so, except (i) Holdings the Borrowers may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common stock, and, with respect to its preferred stock, payable solely in additional shares of such preferred stock or preferred in shares of its common stock, (ii) any Subsidiary may make Restricted Payments so long as there exists no Event of Default, the Borrowers may, to the Borrowerextent required by law, any Subsidiary that is a Loan Party may make Restricted Payments repurchase fractional shares of Borrowers’ Equity Interests up to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiaryan aggregate repurchase total for all fractional shares repurchased of $500,000, (iii) the Borrower Borrowers may make distributions issue its common stock pursuant to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or Borrowers’ equity incentive plan existing on the Borrower, as the case may beEffective Date, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower Borrowers may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations purchase shares of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may Borrowers’ Equity Interests and/or declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, so long as (viiA) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance there exists no Event of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan PartyDefault, and (viiiB) Permitted J/Vs may make Restricted Payments at the time of such purchase of shares and/or payment of cash dividends the Company’s Funded Debt to the holders of their Equity Interests so long as such Restricted Payments are made EBITDA Ratio calculated on a pro rata forma basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to such purchase of shares and/or payment of cash dividends is less than or equal to 1.75 to 1.00; provided, however, if at any time of the Company’s Funded Debt to EBITDA Ratio determined on a pro form basis at such repaymenttime after giving effect to such purchase of shares and/or payment of cash dividends is greater than 1.75 to 1.00, reduction, forgiveness or termination the aggregate combined total for the purchase of all shares and payment of cash dividends shall be permitted so long as it does not exceed $12,000,000 in any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Partytrailing twelve month period.
Appears in 1 contract
Sources: Credit Agreement (Escalade Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred capital stock, (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower Holdings may make distributions Restricted Payments, not exceeding $2,000,000 during any fiscal year, pursuant to Holdings and in accordance with stock option plans or other benefit plans for payment directors, management or employees of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager Borrower and the Subsidiaries, including the redemption or purchase of capital stock of Holdings held by former directors, management or employees of Holdings, the Borrower, as the case may be, and incurred primarily in connection with the business Borrower or any Subsidiary following termination of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereoftheir employment, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings at such times and in such amounts, not exceeding $2,000,000 during any fiscal year, as shall be necessary to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire discharge its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, permitted liabilities and (viiiv) Permitted J/Vs the Borrower and the Joint Venture Holding Companies may make Restricted Payments to Holdings at such times and in such amounts (but not prior to the holders fifth anniversary of their Equity Interests so long the date of issuance of the Cumulative Preferred Stock) as shall be necessary to enable Holdings, after such fifth anniversary, to pay dividends in cash on such Cumulative Preferred Stock as and when declared and payable, provided that, at the time of each Restricted Payment made in reliance upon this clause (v) and after giving pro forma effect to such payment, the Leverage Ratio shall not exceed 1.50 to 1.00, (vi) Holdings, the Borrower and the Subsidiaries may make Restricted Payments are made as and to the extent contemplated by the Recapitalization Agreement and (vii) Holdings may make Restricted Payments on account of the purchase, redemption or repurchase of the Cumulative Preferred Stock with the net proceeds of a pro rata basis substantially concurrent IPO, provided that, after giving effect to all such holders in accordance with their respective Equity Interests in such Permitted J/V.purchase, redemption or repurchase, no Default or Event of Default shall have occurred and be continuing.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than (A) payments in respect of the Subordinated Debt and the Junior Subordinated Note prohibited by the subordination provisions thereof, (B) principal payments in respect of the Junior Subordinated Note and (C) cash interest payments in respect of the Junior Subordinated Note unless, in the case of any such payment specified in this clause (C), at the time of such payment and after giving pro forma effect thereto the Leverage Ratio shall not exceed 1.50 to 1.00 and such payment is due and payable on or after the fifth anniversary of the date of issuance of the Junior Subordinated Note;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) payments on account of the redemption of the First Lien Notes or the Second Lien Notes or a combination thereof with not more than 25% of the aggregate net proceeds of one or more issuances of equity securities of Holdings, provided that (A) after giving effect to such redemption, no Default or Event of Default shall have occurred and be continuing, (B) not more than 35% of the original aggregate principal amount of the First Lien Notes or the Second Lien Notes is redeemed and (C) any such redemption shall be made within 90 days of such equity issuance and otherwise in compliance with the provisions of the First Lien Note Indenture or Second Lien Note Indenture, as applicable; and
(vvi) repayments on, reductions of, forgiveness payments in respect of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyPermitted Receivables Facility.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings each Borrower may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares of its common or preferred stockEquity Interests, (ii) any Subsidiary Subsidiaries may declare and pay dividends or other distributions ratably with respect to their Equity Interests, (iii) so long as there exists no Default or Event of Default, the Borrowers may make Restricted Payments pursuant to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any and in accordance with Equity Interest option plans or other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings benefit plans for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager management or the Borrower, as the case may be, and incurred primarily in connection with the business employees of the Borrower, so long as no Default shall have occurred Borrowers and is continuing or would occur as a result thereoftheir Subsidiaries, (iv) so long as there exists no Default or Event of Default and the Borrower Company is a “flow through” or “disregarded” entity for United States federal income tax purposes, the Company may pay dividends or make distributions to Holdings its members in an aggregate amount not greater than the amount necessary to enable Holdings for such members (or, if any such member is a “flow through” or “disregarded” entity for United States federal income tax purposes, the members of such member) to pay when due, its their actual state and United States federal, state and local income Taxes directly attributable to (or arising as a result of) tax liabilities in respect of income earned by the operations of the BorrowerBorrowers, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted]the Company shall be permitted to pay dividends and distributions; provided, that such dividends and distribution shall only be permitted if (1) there exists no Default or Event of Default, (vi2) Potbelly Franchising may declare the Fixed Charge Coverage Ratio for the Borrowers (after giving effect to such dividend and pay cash distribution) would not be less than 1.25 to 1 for the most recently completed twelve month period assuming that for purposes of calculating the Fixed Charge Coverage Ratio for such period (calculated on a pro forma basis in a manner acceptable to the Administrative Agent) such dividends and distributions occurred on the first day of such applicable period, and (3) immediately after giving effect to Holdings to permit Holdings to invest the payment of any such cash dividends in and distributions and for the Borrower; provided thatnext succeeding twelve month period, Availability will not be less than the greater of (i) $25,000,000 or (ii) 10% of the US Revolving Commitments at such time, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata forma basis (calculated in a manner acceptable to the Administrative Agent and assuming all past due accounts payable of the Borrowers have been paid in full in cash at the time of such holders in accordance with their respective Equity Interests in payment and no accounts payable of the Borrowers are allowed to become past due during such Permitted J/V.twelve month period thereafter).
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.016.1;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments onor repurchases of Senior Notes; provided, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, that (1) immediately after giving effect to any such repaymentrepayment or repurchase and for the next succeeding twelve month period, reductionAvailability will not be less than the greater of (i) $25,000,000 or (ii) 10% of the US Revolving Commitments at such time, forgiveness in each case, on a pro forma basis (calculated in a manner acceptable to the Administrative Agent and assuming all past due accounts payable of the Borrowers have been paid in full in cash at the time of such payment and no accounts payable of the Borrowers are allowed to become past due during such twelve month period thereafter), and (2) the Fixed Charge Coverage Ratio for the Borrowers (after giving effect to such repayment or termination any other transactions repurchase) would not be less than 1.0 to be consummated simultaneously therewith, there is no net cash outflow 1 for the most recently completed twelve month period assuming that for purposes of calculating the Fixed Charge Coverage Ratio for such period (calculated on a pro forma basis in a manner acceptable to Holdings from the Borrower Administrative Agent) such repayment or any other Loan Partyrepurchase occurred on the first day of such applicable period.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (ai) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation except:
(contingent or otherwiseA) to do so, except (i) Holdings the Borrower may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares capital stock;
(B) Subsidiaries of its common or preferred stock, (ii) any Subsidiary the Borrower may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party Borrower and to wholly owned Subsidiaries of the Borrower and may make Restricted Payments declare and pay dividends ratably with respect to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, their capital stock;
(iiiC) the Borrower may make distributions Restricted Payments pursuant to Holdings and in accordance with stock option plans or other benefit plans for payment directors, officers, consultants, advisors or employees of reasonable out-of-pocket operating the Borrower and administrative costs its Subsidiaries, including the redemption or purchase of shares of common stock of the Borrower held by former employees of the Borrower or any Subsidiary following the termination of their employment in an aggregate amount not exceeding during any fiscal year the amount equal to two times the aggregate amount of Restricted Payments made by the Borrower pursuant to such plans during the last fiscal year ended prior to the Effective Date, provided that exercises of stock options issued pursuant to stock option plans existing on the Effective Date in accordance with the terms of such plans in effect on the Effective Date shall not be included in the calculation of such amount and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily there shall be no limit on Restricted Payments made in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, such exercises;
(ivD) the Borrower and its Subsidiaries may make distributions pay the cash consideration payable in the Debt Tender, the cash consideration payable in the Equity Tender and the cash consideration payable in the Merger (including any payments in respect of appraisal rights pursuant to Holdings Section 262 of the Delaware General Corporation Law); and
(E) each Financial Services Subsidiary may pay dividends with respect to its preferred stock in an aggregate amount necessary not exceeding the amount of such dividends required to enable Holdings be paid pursuant to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations terms of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest documents governing such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.stock.
(bii) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(iA) payment of Indebtedness created under the Loan Documents;
(iiB) payment of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness (x) of the Borrower or (y) permitted under Section 5.02(k);
(iiiC) refinancings of Indebtedness of the Borrower and, to the extent permitted by clause (xi) of Section 6.01;5.02(k), of any Subsidiary; and
(ivD) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and.
(viii) repayments onThe Borrower will not, reductions ofnor will it permit any Subsidiary to, forgiveness enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (A) in the case of or the termination any Synthetic Purchase Agreement related to any shares of capital stock of the Parent Note so long asBorrower, the payments required to be made by the Borrower are limited to amounts permitted to be paid under clause (i) of Section 5.02(l), (B) in the case of any case, after giving effect Synthetic Purchase Agreement related to any such repaymentRestricted Indebtedness, reduction, forgiveness or termination any other transactions the payments required to be consummated simultaneously therewith, there is no net cash outflow to Holdings from made by the Borrower or the Subsidiaries thereunder are limited to the amount permitted under clause (ii) of Section 5.02(l) and (C) in the case of any other Loan PartySynthetic Purchase Agreement, the obligations of the Borrower and the Subsidiaries thereunder are subordinated to the Obligations on terms satisfactory to the Required Lenders.
Appears in 1 contract
Sources: Credit Agreement (Temple Inland Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock, (iii) Holdings and the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management, employees or Associated Employees (including former employees and former Associated Employees) of Holdings, the Borrower and its Subsidiaries; provided that the amount thereof, taken together with any Subsidiary payments or transfers of cash, assets or debt securities pursuant to clause (f) of Section 6.09, do not exceed $15,000,000 in any fiscal year, (iv) provided no Event of Default is continuing or would result therefrom, the Borrower may pay dividends to Holdings (x) within the 30-day period prior to any payment date for interest on Permitted Holdings Debt and any Put Financing Indebtedness of Holdings (contingent or otherwise) in the amount of such interest payment and (y) at any time in such amounts as may be necessary to permit Holdings to pay its expenses and liabilities incurred in the ordinary course (other than payments in respect of Indebtedness or Restricted Payments), (v) provided no Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments to the BorrowerHoldings, any Subsidiary that is a Loan Party may and Holdings may, in turn, make such Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarythe Parent, (iiiA) in an aggregate amount not to exceed $12,500,000 during any fiscal year of the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, (B) so long as the Pro Forma RP Coverage Ratio is not less than 1.05 to 1.00 and, if on the date of such Restricted Payment the Pro Forma Leverage Ratio is less than 5.00 to 1.00, in an aggregate amount not to exceed the Borrower's Portion of Excess Cash Flow for the immediately preceding fiscal year of the Borrower less the amount of any other Designated Excess Cash Expenditures made with such Borrower's Portion of Excess Cash Flow, (vi) Restricted Payments in amounts as shall be necessary to make Tax Payments to the extent not disallowed by Section 6.14; provided that all Restricted Payments made pursuant to this clause (vi) are used by the Parent or Holdings for the purpose specified in clause (vi) within 30 days of receipt thereof, (vii) provided that no Event of Default shall have occurred and is continuing or would occur as a result thereoftherefrom, (iv) the Borrower may make distributions pay dividends to Holdings, and Holdings may, in turn, pay such dividends to the Parent to enable RHD Corp. to (A) repurchase its common stock and (B) pay cash dividends on its common stock, in an aggregate amount necessary for the preceding clauses (A) and (B) during any fiscal year not to enable Holdings exceed, if the Leverage Ratio (determined on a pro forma basis after giving effect to pay when duesuch Restricted Payment) for the period of four consecutive fiscal quarters most recently ended on or prior to the date of such Restricted Payment is (w) greater than 4.00 to 1.0, its actual federal10% of Excess Cash Flow for the previous year, state (x) greater than 3.50 to 1.0 but less than or equal to 4.00 to 1.0, 20% of Excess Cash Flow for the previous year, (y) greater than 3.00 to 1.0 but less than or equal to 3.50 to 1.0, 30% of Excess Cash Flow for the previous year and local income Taxes directly attributable (z) less than 3.00 to 1.0, 50% of Excess Cash Flow for the previous year, (viii) provided that no Event of Default is continuing or arising as a would result of) the operations of the Borrowertherefrom, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising Borrower may declare and from time to time pay cash dividends to Holdings and Holdings may, in turn, use the proceeds thereof to permit Holdings to invest such pay cash dividends in to the Borrower; provided thatParent, in each such casecase in an amount not in excess of the West Allocable Share of regularly scheduled cash interest payable during the next period of 30 days on any Put Financing Indebtedness of Parent and any Qualifying Parent Indebtedness, Holdings actually and promptly uses provided, however, that (A) any such dividends relating to any such cash interest payment must be paid not earlier than 30 days prior to the date when such cash interest is required to be paid by the Parent and the proceeds must (except to the extent prohibited by applicable subordination provisions) be applied by the Parent to the payment of such interest when due and (B) in the case of Qualifying Parent Indebtedness, no payment of dividends may be made pursuant to this clause (viii) in respect of the West Allocable Share of cash interest on such Indebtedness other than Base QPI unless the Interest Coverage Ratio (determined on a pro forma basis after giving effect to such dividend payment) for the period of four consecutive fiscal quarters most recently ended on or prior to the date of such investmentsdividend payment is not less than 1.75 to 1.00, (viiix) each Loan Party the Borrower may purchasefrom time to time pay cash dividends to Holdings and Holdings may, redeem or otherwise acquire its common or preferred Equity Interests with in turn, use the proceeds received thereof to pay cash dividends to the Parent, in each case in an amount not in excess of the amount necessary to repurchase the Existing Parent Notes pursuant to the Change in Control Offers, (x) provided that no Event of Default is continuing or would result therefrom, the Borrower may from time to time pay cash dividends to Holdings and Holdings may, in turn, use the substantially concurrent issuance proceeds thereof to pay cash dividends to the Parent, in each case in an amount not in excess of new common or preferred Equity Interests or where the consideration is RHD Allocable Share of regularly scheduled cash interest payable during the cancellation next period of 30 days on the outstanding Indebtedness owed of RHD Corp., provided, however, that (A) any such dividends relating to any Loan Partysuch cash interest payment must be paid not earlier than 30 days prior to the date when such cash interest is required to be paid by RHD Corp. and the proceeds must (except to the extent prohibited by applicable subordination provisions, if any) be applied by RHD Corp. to the payment of such interest when due, (B) no payment of dividends may be made pursuant to this clause (x) in respect of the RHD Allocable Share of cash interest on such Indebtedness other than Base RHD Indebtedness unless the Interest Coverage Ratio (determined on a pro forma basis after giving effect to such dividend payment) for the period of four consecutive fiscal quarters most recently ended on or prior to the date of such dividend payment is not less than 1.75 to 1.00 and (C) at the time of the incurrence of such Indebtedness (other than Base RHD Indebtedness outstanding on the Restatement Effective Date), and after giving effect thereto, the RHD Leverage Ratio shall not have exceeded 7.25 to 1.00, and (viiixi) Permitted J/Vs the Borrower may make Restricted Payments from time to time pay cash dividends to Holdings and Holdings may, in turn, use the proceeds thereof to pay cash dividends to the holders Parent, in each case in an amount not in excess of their Equity Interests so long as such Restricted Payments are the proceeds of the Tranche B-1 Term Loans made on a pro rata basis or after the Restatement Effective Date, provided, however, that such proceeds must be applied to all such holders consummate the Parent Acquisition in accordance with their respective Equity Interests the Merger Agreement and/or to redeem Existing Notes pursuant to any Change in such Permitted J/V.Control Offers.
(b) No Loan Party willThe Parent, Holdings and the Borrower will not, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness (including any Put Financing Indebtedness), other than payments in respect of the Senior Subordinated Debt, Permitted Subordinated Indebtedness, Qualifying Parent Indebtedness, Parent Non-Cash Pay Debt or other subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) prepayment of Capital Lease Obligations in an aggregate cumulative amount from and after the Original Closing Date not exceeding $7,500,000;
(vi) Optional Repurchases of other Indebtedness involving cumulative expenditures in any fiscal year not in excess of an amount equal to the Borrower's Portion of Excess Cash Flow for the immediately preceding fiscal year less the amount of other Designated Excess Cash Expenditures made with such Borrower's Portion of Excess Cash Flow, provided, however, that on the date of each such Optional Repurchase the Pro Forma Leverage Ratio is less than 5.00 to 1.00;
(vii) Optional Repurchases of other Indebtedness involving expenditures in an amount not in excess of (x) that portion of the Net Proceeds (or Allocable Net Proceeds, as the case may be) from any Equity Issuance (or portion thereof) in respect of which the Required Percentage is 50% which is not required to be applied to the prepayment of Term Loans pursuant to Section 2.11(c) and (y) 50% of the Net Proceeds (or Allocable Net Proceeds, as the case may be) from any Equity Issuance (or portion thereof) in respect of which the Required Percentage is 0%; provided, however, that (I) such Optional Repurchases are effected within 180 days of the receipt of the Net Proceeds (or Allocable Net Proceeds) from the relevant Equity Issuance and (II) in the case of Optional Repurchases made pursuant to clause (y), the Borrower makes the related mandatory prepayment of Term Borrowings required by Section 2.11(e); and
(vviii) repayments onrepurchases of the Existing Notes pursuant to the Change in Control Offers.
(c) The Parent, reductions ofHoldings and the Borrower will not, forgiveness and will not permit any Subsidiary to, furnish any funds to, make any Investment in, or provide other consideration to any other Person (including an Unrestricted Subsidiary) for purposes of enabling such Person to, or otherwise permit any such Person to, make any Restricted Payment or other payment or distribution restricted by this Section that could not be made directly by Holdings or the termination Borrower in accordance with the provisions of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Partythis Section.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except
(i) Holdings Restricted Subsidiaries may declare and pay dividends ratably with respect to its common or preferred their capital stock payable solely in additional shares of its common or preferred stock(A) to shareholders other than FCX, (iiB) any Subsidiary may make Restricted Payments to FCX to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments extent the proceeds of such dividends are applied to any other Subsidiary that is a Loan Partypay operating expenses in the ordinary course of business, and (C) to FCX so long as (1) no Event of Default under clause (a) or (b) of Article VII shall have occurred and be continuing and (2) if any Subsidiary that is not a Loan Party may make Restricted Payments to any Event of Default other Subsidiary, than under clause (iiia) or (b) of Article VII shall have occurred and be continuing (or shall result from the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrowerthereof), so long as the Required Lenders shall not have given notice to FCX that such dividends shall not be permitted to be paid during the pendency of such Event of Default,
(ii) so long as no Event of Default shall have occurred and is be continuing (or would occur shall result from the payment thereof), FCX may pay regularly scheduled quarterly dividends in respect of its preferred stock issued and outstanding on the Effective Date and effect regularly scheduled mandatory redemptions of its preferred stock issued and outstanding on the Effective Date, in each case, to the extent and in the amounts required by the terms of such preferred stock as in effect on the Effective Date,
(iii) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), FCX may, consistent with its dividend practices as of the Effective Date, and subject to the Incurrence Test, declare and pay dividends on its shares of common stock (and on shares of common stock issued upon the conversion of or in exchange for shares of FCX’s 5 1/2% Convertible Perpetual Preferred Stock outstanding on the Effective Date) in an amount in respect of any fiscal quarter not to exceed $0.3125 per share of FCX’s common stock (adjusted as applicable to eliminate the effect of stock dividends, stock splits, reverse stock splits and other transactions in respect of such shares of common stock, and payable in respect of any shares of common stock received pursuant to any such stock dividend, stock split, reverse stock split or other transaction) (it being understood that Restricted Payments made in reliance on this clause (iii) in respect of shares of FCX’s common stock issued or sold after the Effective Date (or in respect of shares received in stock dividends, stock splits, reverse stock splits or other transactions in respect of such shares of common stock) involving either (x) a result thereofreceipt of cash proceeds that increased the Restricted Uses Basket or (y) the receipt of assets in consideration for such common stock shall constitute Restricted Uses and shall reduce the Restricted Uses Basket (which reduction may be to less than zero)), and
(iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state so long as no Event of Default shall have occurred and local income Taxes directly attributable to be continuing (or arising as a shall result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Partypayment thereof), and (viii) Permitted J/Vs subject to the Incurrence Test, FCX may make Restricted Payments in cash in any amounts to the holders extent that, immediately after giving effect thereto (and to any expenditure of their Equity Interests so long as such cash required thereby), the Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Uses would not be greater than the Restricted Uses Basket.
(b) No Loan Party willThe Borrower will not, nor will it permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any voluntary payment or other voluntary distribution (whether in cash, securities (other than common stock of FCX) or other property) of or in respect of principal of or interest on any Indebtedness, or any voluntary payment or other voluntary distribution (whether in cash, securities (other than common stock of FCX) or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan DocumentsDocuments and payment of Ratable FCX Obligations, Ratable Cyprus Obligations and Ratable PD Obligations;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.016.01(a) (including, without limitation, the refinancing of any Indebtedness, other than the Senior Notes, with Indebtedness permitted under Section 6.01(a)(xi));
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and;
(v) repayments onprepayments of Indebtedness owed to FCX by a Restricted Subsidiary or owed to a Restricted Subsidiary by FCX or another Restricted Subsidiary, reductions ofprovided that prepayments of Indebtedness owed to a Restricted Subsidiary that is not a Loan Party shall be permitted only to the extent no Event of Default has occurred and is continuing at the time of such prepayment, forgiveness except that such prepayments shall be permitted (A) to the extent the proceeds of such prepayments are applied to pay operating expenses or to make Capital Expenditures in the termination ordinary course of business, and (B) to the Parent Note extent the proceeds of such prepayments are applied to pay scheduled debt service of such Restricted Subsidiary so long asas (1) no Event of Default under clause (a) or (b) of Article VII shall have occurred and be continuing and (2) if any Event of Default other than under clause (a) or (b) of Article VII shall have occurred and be continuing (or shall result from the payment thereof), so long as the Required Lenders shall not have given notice to FCX that such prepayments shall not be permitted to be paid during the pendency of such Event of Default;
(vi) prepayments of any Project Financing to the extent made by the applicable Project Financing Subsidiary with cash from the operations of such Project Financing Subsidiary;
(vii) payments of Indebtedness (other than Indebtedness referred to in any case, clause (viii) below) that are not permitted by clauses (i)-(vi) of this Section 6.08(b) if and to the extent that after giving effect to any such repaymentpayments, reductionthe Restricted Uses would not be greater than the Restricted Uses Basket; and
(viii) payment of Indebtedness created under the Restated Credit Agreement and the “Loan Documents” thereunder, forgiveness provided that no Indebtedness may be prepaid under the Restated Credit Agreement (A) at any time that any Loan or termination any other transactions to be consummated simultaneously therewith, LC Disbursement is outstanding and (B) if there is no net cash outflow to Holdings from outstanding any Letter of Credit or Letters Credit in an aggregate outstanding amount smaller than such prepayment, unless such Letter of Credit or Letters of Credit are redesignated as Letters of Credit under the Borrower or any other Loan PartyRestated Credit Agreement in accordance with Section 2.05(a)(iii).
Appears in 1 contract
Sources: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings the Borrower may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common or stock, and, with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock;
(ii) any Subsidiary Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iii) consistent with past practice, the Borrower may make Restricted Payments pursuant to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any and in accordance with stock option plans or other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) benefit plans for management or employees of the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, its Subsidiaries; and
(iv) consistent with past practice and subject to any increases approved by the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations board of directors of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising Borrower may declare and pay cash dividends with respect to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as no Event of Default shall have occurred and be continuing or shall result therefrom after giving pro forma effect thereto; provided, that if such Restricted Payments cash dividends are made funded with Indebtedness permitted hereunder, the Borrower shall be in compliance with the financial covenants set forth in Section 6.12 both before and immediately after giving effect (including giving effect on a pro rata basis forma basis) to all the payment of such holders in accordance with their respective Equity Interests in dividends and the incurrence of such Permitted J/V.Indebtedness.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness permitted under Section 6.01, other than payments in respect of Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;; and
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness Indebtedness to the extent such sale or transfer is permitted by the terms of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartySection 6.05.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares of its common or preferred stock, Equity Interests in Holdings;
(ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, their capital stock;
(iii) the Parent Borrower may make distributions payments to Holdings to permit it to make, and Holdings may make, Restricted Payments, not exceeding $5,000,000 during the term of this Agreement, in each case pursuant to and in accordance with stock option plans, equity purchase programs or agreements or other benefit plans, in each case for payment management or employees or former employees of reasonable out-of-pocket operating the Parent Borrower and the Subsidiaries;
(iv) the Parent Borrower may make Permitted Tax Distributions to Holdings or any other direct or indirect equity owners of the Parent Borrower;
(v) the Parent Borrower may pay dividends to Holdings at such times and in such amounts as shall be necessary to permit Holdings to discharge and satisfy its obligations that are permitted hereunder (including (A) state and local taxes and other governmental charges, and administrative costs and routine expenses required to be paid by Holdings in the ordinary course of business and (B) cash dividends payable by HoldingsHoldings in respect of Qualified Holdings Preferred Stock issued pursuant to clauses (b) and (c) of the definition thereof; provided that dividends payable by the Parent Borrower to Holdings pursuant to this clause (v) in order to satisfy cash dividends payable by Holdings in respect of Qualified Holdings Preferred Stock issued pursuant to clause (c) of the definition thereof may only be made after the fiscal year ending December 31, 2013, with Excess Cash Flow not otherwise required to be used to prepay Term Loans pursuant to Section 2.11(d)) (without duplication of amounts used pursuant to Section 6.08(b)(v)(A) or amounts included in the Manager Available Amount and used pursuant to Sections 6.04(s), 6.08(a)(vii) or 6.08(b)(vii));
(vi) the Borrower, as the case Parent Borrower may bemake payments to Holdings to permit it to make, and incurred primarily in connection with Holdings may make payments permitted by Sections 6.09(d), (e), (f) and (g); provided that, at the business time of the Borrowersuch payment and after giving effect thereto, so long as no Default or Event of Default shall have occurred and is be continuing or would occur as a result thereofand Holdings and the Parent Borrower are in compliance with Section 6.12; provided, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when duefurther, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations that any payments that are prohibited because of the Borrowerimmediately preceding proviso shall accrue and may be made as so accrued upon the curing or waiver of such Default, the Manager and their Subsidiaries that are due and payable by Holdings as the parent Event of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the BorrowerDefault or noncompliance; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, and
(vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with (A) the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, Parent Borrower and (viii) Permitted J/Vs Holdings may make Restricted Payments in an aggregate amount not to exceed the Available Amount and (B) Holdings may make Restricted Payments with the proceeds of Restricted Payments made to it by the Borrower pursuant to clause (A); provided that in the case of both clauses (A) and (B), at the time of such payment and after giving effect thereto, (i) no Default or Event of Default shall have occurred and be continuing and (ii) at the time of such payment and after giving effect thereto and to the holders incurrence of their Equity Interests so long as such Restricted Payments are made on a pro rata basis any Indebtedness in connection therewith, the Leverage Ratio is not greater than 2.00 to all such holders in accordance with their respective Equity Interests in such Permitted J/V.1.00.
(b) No Loan Party None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result out of the voluntary proceeds of any sale or transfer of the property or assets securing such Indebtedness;
(v) payments in respect of the repurchase, retirement or other acquisition of Equity Interests in Holdings using (A) the portion of Excess Cash Flow not subject to mandatory prepayment pursuant to Section 2.11(d) (without duplication of amounts used pursuant to Section 6.08(a)(v) or amounts included in the Available Amount and used pursuant to Sections 6.04(s), 6.08(a)(vii) or 6.08(b)(vii)) or (B) any source of cash (to the extent not otherwise prohibited in this Agreement) up to an amount not to exceed (x) if after giving effect to such payment, the Leverage Ratio would be (1) less than 2.25 to 1.00, $100,000,000, (2) less than 2.75 to 1.00, but greater than or equal to 2.25 to 1.00, $75,000,000 and (3) less than 3.25 to 1.00 but greater than or equal to 2.75 to 1.00, $50,000,000 and (y) otherwise, $15,000,000;
(vi) payments of Indebtedness with the Net Proceeds of an issuance of Equity Interests in Holdings; and
(vvii) repayments on, reductions of, forgiveness payments of or Indebtedness in an amount equal to the termination Available Amount; provided that at the time of the Parent Note so long as, in any case, such payment and after giving effect thereto, (i) no Default or Event of Default shall have occurred and be continuing and (ii) at the time of such payment and after giving effect thereto and to the incurrence of any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously Indebtedness in connection therewith, there the Leverage Ratio is no net cash outflow not greater than 2.00 to Holdings from 1.00.
(c) None of Holdings, the Parent Borrower or any other Loan PartyForeign Subsidiary Borrower will, nor will they permit any Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic Purchase Agreement related to any Equity Interest of Holdings, the payments required to be made by Holdings are limited to amounts permitted to be paid under Section 6.08(a), (ii) in the case of any Synthetic Purchase Agreement related to any Restricted Indebtedness, the payments required to be made by Holdings, the Parent Borrower or the Subsidiaries thereunder are limited to the amount permitted under Section 6.08(b) and (iii) in the case of any Synthetic Purchase Agreement, the obligations of Holdings, the Parent Borrower and the Subsidiaries thereunder are subordinated to the Obligations on terms satisfactory to the Required Lenders.
Appears in 1 contract
Sources: Credit Agreement (Trimas Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings Subsidiaries of the Borrower may declare and pay dividends ratably (or in a manner more favorable to the Borrower or Subsidiaries) with respect to its common or preferred stock payable solely in additional shares of its common or preferred their capital stock, ;
(ii) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management and employees (including former employees) of the Borrower and its Subsidiaries; provided that the amount thereof does not exceed $2,000,000 in any Fiscal Year plus the amount transferred to the Borrower of Net Proceeds from any Equity Issuance of Holdings during such Fiscal Year to directors, officers or employees in connection with employee stock option plans or other benefit plans for management and employees permitted hereunder;
(iii) the Borrower may pay dividends to Holdings at any time in such amounts as may be necessary to permit Holdings to pay its expenses and liabilities incurred in the ordinary course and in compliance with Section 6.03(b) (other than payments in respect of Indebtedness or Restricted Payments) which are attributable or allocable to the operations of the Borrower and the Subsidiaries;
(iv) non-Cash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; and
(v) the Borrower or any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable amounts required for Holdings to pay when due, its actual federal, state and local income Taxes imposed directly on Holdings to the extent such Taxes are attributable to (or arising as a result of) the operations income of the BorrowerBorrower and its Subsidiaries (including, without limitation, by virtue of Holdings being the Manager and their Subsidiaries that are due and payable by Holdings as the common parent of a consolidated groupor combined tax group of which the Borrower and/or its Subsidiaries are members); provided, however, that the amount of any such dividends or distributions (vplus any Taxes payable directly by the Borrower and its Subsidiaries) [intentionally omitted], (vi) Potbelly Franchising may declare shall not exceed the amount of such Taxes that would have been payable directly by the Borrower and/or its Subsidiaries had the Borrower been the common parent of a separate tax group that included only the Borrower and pay cash dividends its Subsidiaries and in amounts equal to the amounts required for Holdings to permit Holdings pay franchise taxes and other fees required to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire maintain its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.corporate existence.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cashCash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cashCash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any subordinated Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled fees and expenses and interest and principal payments as and when due in respect of any IndebtednessIndebtedness permitted by Section 6.01, other than payments in respect of subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;; and
(iv) any agreement to pay or make any such payment of secured Indebtedness or other distribution in connection with a transaction that becomes due as a will result in the repayment in full of the voluntary sale or transfer of the property or assets securing such Indebtedness; andObligations.
(vc) repayments onThe Borrower will not, reductions ofand will not permit any Subsidiary to, forgiveness of furnish any funds to, make any Investment in, or the termination of the Parent Note so long as, in any case, after giving effect provide other consideration to any other Person for purposes of enabling such repaymentPerson to, reductionor otherwise permit any such Person to, forgiveness make any Restricted Payment or termination any other transactions to payment, repurchase, repayment or distribution restricted by this Section that could not be consummated simultaneously therewith, there is no net cash outflow to Holdings from made directly by the Borrower or any other Loan Partyin accordance with the provisions of this Section.
Appears in 1 contract
Sources: Senior Secured Loan Agreement (Hawaiian Telcom Holdco, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willFCX will not, nor will it permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except
(i) Holdings Restricted Subsidiaries may declare and pay dividends ratably with respect to its common or preferred their capital stock payable solely in additional shares of its common or preferred stock(A) to shareholders other than FCX, (iiB) any Subsidiary may make Restricted Payments to FCX to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments extent the proceeds of such dividends are applied to any other Subsidiary that is a Loan Partypay operating expenses in the ordinary course of business, and (C) to FCX so long as (1) no Event of Default under clause (a) or (b) of Article VII shall have occurred and be continuing and (2) if any Subsidiary that is not a Loan Party may make Restricted Payments to any Event of Default other Subsidiary, than under clause (iiia) or (b) of Article VII shall have occurred and be continuing (or shall result from the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrowerthereof), so long as the Required Lenders shall not have given notice to FCX that such dividends shall not be permitted to be paid during the pendency of such Event of Default,
(ii) so long as no Event of Default shall have occurred and is be continuing (or would occur shall result from the payment thereof), FCX may pay regularly scheduled quarterly dividends in respect of its preferred stock issued and outstanding on the Effective Date and effect regularly scheduled mandatory redemptions of its preferred stock issued and outstanding on the Effective Date, in each case, to the extent and in the amounts required by the terms of such preferred stock as in effect on the Effective Date,
(iii) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), FCX may, consistent with its dividend practices as of the Effective Date, and subject to the Incurrence Test, declare and pay dividends on its shares of common stock (and on shares of common stock issued upon the conversion of or in exchange for shares of FCX’s 5 1/2% Convertible Perpetual Preferred Stock outstanding on the Effective Date) in an amount in respect of any fiscal quarter not to exceed $0.3125 per share of FCX’s common stock (adjusted as applicable to eliminate the effect of stock dividends, stock splits, reverse stock splits and other transactions in respect of such shares of common stock, and payable in respect of any shares of common stock received pursuant to any such stock dividend, stock split, reverse stock split or other transaction) (it being understood that Restricted Payments made in reliance on this clause (iii) in respect of shares of FCX’s common stock issued or sold after the Effective Date (or in respect of shares received in stock dividends, stock splits, reverse stock splits or other transactions in respect of such shares of common stock) involving either (x) a result thereofreceipt of cash proceeds that increased the Restricted Uses Basket or (y) the receipt of assets in consideration for such common stock shall constitute Restricted Uses and shall reduce the Restricted Uses Basket (which reduction may be to less than zero)), and
(iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state so long as no Event of Default shall have occurred and local income Taxes directly attributable to be continuing (or arising as a shall result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Partypayment thereof), and (viii) Permitted J/Vs subject to the Incurrence Test, FCX may make Restricted Payments in cash in any amounts to the holders extent that, immediately after giving effect thereto (and to any expenditure of their Equity Interests so long as such cash required thereby), the Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Uses would not be greater than the Restricted Uses Basket.
(b) No Loan Party willEach Borrower will not, nor and will it not permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any voluntary payment or other voluntary distribution (whether in cash, securities (other than common stock of FCX) or other property) of or in respect of principal of or interest on any Indebtedness, or any voluntary payment or other voluntary distribution (whether in cash, securities (other than common stock of FCX) or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan DocumentsDocuments and payment of Ratable Obligations and Existing PD Obligations;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.016.01(a) (including, without limitation, the refinancing of any Indebtedness, other than the Senior Notes, with Indebtedness permitted under Section 6.01(a)(xi));
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and;
(v) repayments onprepayments of Indebtedness owed to FCX by a Restricted Subsidiary or owed to a Restricted Subsidiary by FCX or another Restricted Subsidiary, reductions ofprovided that prepayments of Indebtedness owed to a Restricted Subsidiary that is not a PCA Loan Party shall be permitted only to the extent no Event of Default has occurred and is continuing at the time of such prepayment, forgiveness except that such prepayments shall be permitted (A) to the extent the proceeds of such prepayments are applied to pay operating expenses or to make Capital Expenditures in the termination ordinary course of business, and (B) to the Parent Note extent the proceeds of such prepayments are applied to pay scheduled debt service of such Restricted Subsidiary so long asas (1) no Event of Default under clause (a) or (b) of Article VII shall have occurred and be continuing and (2) if any Event of Default other than under clause (a) or (b) of Article VII shall have occurred and be continuing (or shall result from the payment thereof), so long as the Required Lenders shall not have given notice to FCX that such prepayments shall not be permitted to be paid during the pendency of such Event of Default;
(vi) prepayments of any Project Financing to the extent made by the applicable Project Financing Subsidiary with cash from the operations of such Project Financing Subsidiary;
(vii) payments of Indebtedness (other than Indebtedness referred to in any case, clause (viii) below) that are not permitted by clauses (i)-(vi) of this Section 6.08(b) if and to the extent that after giving effect to any such repaymentpayments, reductionthe Restricted Uses would not be greater than the Restricted Uses Basket; and
(viii) payments of Indebtedness created under the Parent Credit Agreement and the “Loan Documents” thereunder.
(c) Neither paragraph (a) nor paragraph (b) above shall prohibit any Restricted Payment or payment of Indebtedness if after giving effect to such Restricted Payment or payment of Indebtedness (i) no Term Loan is outstanding under the Parent Credit Agreement and (ii) the sum of (A) the aggregate unused Revolving Commitments, forgiveness or termination any other transactions (B) the aggregate unused Commitments (as defined in the Parent Credit Agreement) and (C) Available Domestic Cash shall be not less than $750,000,000.
(d) Each of paragraph (a) and paragraph (b) above shall cease to be consummated simultaneously therewithof effect from and after the first date upon which the corporate credit ratings of FCX by each of Moody’s and S&P are, there is no net cash outflow to Holdings from the Borrower respectively, Baa3 or any other Loan Partybetter and BBB- or better.
Appears in 1 contract
Sources: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willshall, nor will it shall any Loan Party permit any Subsidiary of its Subsidiaries or the LS&Co. Trust to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments, except (i) Holdings may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrowerthat, so long as no Default or Event of Default shall have occurred and is be continuing at the time of any action described below or would occur result therefrom: (i) the U.S. Borrower may declare and pay dividends and distributions payable only in Equity Interests (other than Disqualified Stock) of the U.S. Borrower, (ii) the U.S. Borrower may purchase Equity Interests from present or former employees, directors or other recipients (and their beneficiaries) of such Equity Interests under the U.S. Borrower’s incentive compensation plans and agreements as provided under such plans and agreements for aggregate consideration not to exceed $20.0 million in any twelve (12) Fiscal Month period, (iii) Restricted Payments to a result thereofU.S. Loan Party, (iv) the Borrower may make distributions Restricted Payments by any Foreign Subsidiary to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state any Canadian Loan Party and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], Restricted Payments by any Foreign Subsidiary (viother than a Canadian Loan Party) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrowerany Foreign Subsidiary; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, that (viii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance requirements of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed this Section 6.08(a) shall not apply to any Restricted Payment when the Payment Conditions with respect thereto are satisfied and the Loan Party, Parties shall have delivered to the Administrative Agent either a certificate of a Financial Officer (with reasonably detailed calculations) certifying satisfaction of the Payment Conditions or other evidence of the same reasonably satisfactory to the Administrative Agent and (viiiii) Permitted J/Vs may make no Default or Event of Default shall be deemed to have occurred if the Payment Conditions with respect to any Restricted Payment cease to be satisfied based solely on any Restricted Payments to made when the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance Payment Conditions with their respective Equity Interests in such Permitted J/V.respect thereto were satisfied.
(b) No Loan Party willshall, nor will it shall any Loan Party permit any Subsidiary of its Subsidiaries or the LS&Co. Trust to, make prepay, redeem, purchase, defease or agree otherwise satisfy prior to pay the scheduled maturity thereof in any manner (collectively, a “prepayment”) any Indebtedness, except (i) the prepayment of the Loans in accordance with the terms of this Agreement, (ii) the prepayment of Indebtedness payable to a U.S. Loan Party, (iii) the prepayment of Indebtedness payable to a Canadian Loan Party by any Foreign Subsidiary, (iv) the prepayment of Indebtedness owed to any Foreign Subsidiary by any Foreign Subsidiary (other than a Canadian Loan Party), (v) the prepayment of the outstanding principal amount of, premium or makepenalty, directly or indirectlyif any, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or and interest on any Indebtedness, Indebtedness (other than the Loans) that is secured by a Lien on the stock or any payment or other distribution (whether assets in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created question and that is required to be repaid under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due terms thereof as a result of a permitted Disposition, (vi) the voluntary sale or transfer prepayment of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any casewhole or in part, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no from the net cash outflow to Holdings from the Borrower proceeds of (or any other Loan Party.in exchange for) Permitted Refinancing Indebtedness,
Appears in 1 contract
Sources: Credit Agreement (Levi Strauss & Co)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and the Borrower will it not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings the Borrower may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary Subsidiaries may make Restricted Payments ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower may make distributions Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and the Subsidiaries or to Holdings for payment in such amounts and at such times as shall be necessary to permit Holdings to purchase or otherwise redeem or acquire capital stock of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager Holdings issued to management or the Borrower, as the case may be, and incurred primarily in connection with the business employees of the BorrowerBorrower and the Subsidiaries, so long as no Default provided that the aggregate amount of Restricted Payments made by the Borrower pursuant to this clause (iii) after the Effective Date shall have occurred not at any time exceed $1,000,000 plus the aggregate amount of Net Proceeds theretofore received by the Borrower after the Effective Date that are attributable to the issuance by Holdings of shares of its common stock to management or employees of the Borrower and is continuing or would occur as a result thereofthe Subsidiaries pursuant to transactions that do not constitute Prepayment Events, (iv) the Borrower may make distributions pay dividends to Holdings at such times and in an amount such amounts, not exceeding $1,500,000 during any fiscal year, as shall be necessary to enable permit Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) customary administrative expenses incurred in the operations ordinary course of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated groupbusiness, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs Borrower may make Restricted Payments to Holdings to enable Holdings to pay, or the holders Borrower may pay directly to Cast▇▇ ▇▇▇▇▇▇, ▇▇nagement fees pursuant to the Management Agreement in an aggregate amount not to exceed (A) $625,000 during the year ending December 31, 1999, (B) $1,250,000 during each fiscal year of their Equity Interests so long as such the Borrower ending during the period commencing on January 1, 2000, and ending December 31, 2002, and (C) $2,000,000 during each fiscal year of the Borrower thereafter and (vi) if the Transition Date occurs after the Effective Date and prior to the nine month anniversary of the Effective Date and all outstanding Term Loans have been repaid in full, the Borrower may make Restricted Payments are made on to Holdings, in an aggregate amount not to exceed the lesser of (A) the amount of the Equity Financing and (B) the amount of the Net Proceeds of the issuance of the Senior Notes less the amount of Term Loans outstanding immediately prior to such issuance, to enable Holdings to repay the Equity Financing to CHP III and its Affiliates; provided, however, that any Restricted Payment otherwise permitted by this Section 6.08(a) shall not be permitted if at the time thereof and after giving effect thereto a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Default shall have occurred and be continuing.
(b) No Loan Party willThe Borrower will not, nor and the Borrower will it not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and interest, principal payments and fees as and when due in respect of any Indebtedness, other than payments in respect of any subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) the repayment of all amounts outstanding under the Existing Credit Agreement and the repayment of all Indebtedness of the Company outstanding on the Effective Date; and
(vvi) after the Transition Date, other repayments on, reductions of, forgiveness of or Indebtedness (other than the termination Senior Notes and any Permitted Subordinated Indebtedness) if at the time of the Parent Note so long as, in any case, after giving effect to any such repaymentrepayment no Revolving Acquisition Loans are outstanding, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from provided that the Borrower or and the Subsidiaries may repay Indebtedness (other than the Senior Notes and any other Loan PartyPermitted Subordinated Indebtedness) in accordance with this clause (vi) in an aggregate principal amount not exceeding $5,000,000 during the term of this Agreement without regard to the foregoing 104 100 requirement that Revolving Acquisition Loans not be outstanding.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(i) The Borrower or any other Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests, in each case ratably to the holders of such Equity Interests (or if not ratably, on a basis more favorable to the Borrower and the Loan Parties), provided that dividends paid by the Borrower to Holdings may only be paid at such times and in such amounts (subject to any applicable restrictions set forth below) as are necessary, after taking into account other cash held by Holdings, to enable Holdings to make Restricted Payments permitted to be made by it under this Section 6.08;
(ii) Holdings may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares of its common or preferred stockQualified Equity Interests of Holdings;
(iii) Holdings and the Borrower may, (ii) any Subsidiary and the Borrower may make Restricted Payments to the BorrowerHoldings so that Holdings may, may repurchase, purchase, acquire, cancel or retire for value Equity Interests of Holdings from present or former employees, officers, directors or consultants (or their estates or beneficiaries under their estates) of Holdings or any Subsidiary upon the death, disability, retirement or termination of employment or service of such employees, officers, directors or consultants, or to the extent required, pursuant to employee benefit plans, employment agreements, stock purchase agreements or stock purchase plans, or other benefit plans; provided that is a Loan Party may make the aggregate amount of all Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, made in reliance on this subsection (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily shall not exceed $23,000,000 in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, any Fiscal Year;
(iv) the Borrower may make distributions Restricted Payments to Holdings at such times and in an such amounts as shall be necessary, after giving effect to the amount necessary of cash and cash equivalents then otherwise available to enable Holdings (including through dividends or other distributions from other Subsidiaries), (A) to permit Holdings to discharge its general corporate and overhead expenses (including franchise taxes and directors fees) incurred in the ordinary course of business and other permitted liabilities and (B) to pay when due, its actual federal, state and local income Taxes the Tax liabilities of Holdings directly attributable to (or arising as a result of) the operations of the Borrower, Borrower and the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, other Subsidiaries;
(v) [intentionally omitted]Holdings may make cash payments in lieu of the issuance of fractional shares representing insignificant interests in Holdings in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests in Holdings;
(vi) Potbelly Franchising Holdings and the Borrower may declare and pay cash dividends to acquire Equity Interests of Holdings to permit Holdings to invest such cash dividends in upon the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends exercise of stock options for such investmentsEquity Interests of Holdings if such Equity Interests represent a portion of the exercise price of such stock options or in connection with tax withholding obligations arising in connection with the exercise of options by, or the vesting of restricted Equity Interests held by, any current or former director, officer or employee of Holdings or its Subsidiaries;
(vii) each Loan Party Holdings may purchase, redeem convert or otherwise acquire its common or preferred exchange any Equity Interests with the proceeds received from the substantially concurrent issuance of new common Holdings for or preferred into Qualified Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and Holdings;
(viii) Permitted J/Vs so long as no Default shall have occurred and be continuing, (x) Holdings may on any date make Restricted Payments in an amount not in excess of the amount of Qualifying Equity Proceeds available on such date and (y) the Borrower may on any date make Restricted Payments in an amount not in excess of the amount, if any, of Qualifying Equity Proceeds previously distributed to it and not previously applied to Specified Uses (provided, however, that the Borrower shall not, except as permitted by this clause (y), make Restricted Payments to the holders of their Equity Interests Holdings to enable Holdings to make any Restricted Payment under this clause (viii);
(ix) so long as no Default shall have occurred and be continuing or would result therefrom and no ECF Shortfall Amount is at the time outstanding, Holdings and the Borrower may on any date make (and the Borrower may pay a dividend to Holdings on such date in an amount necessary to permit it to make such) Restricted Payments in an amount equal (A) $17,250,000 plus (B) the Available ECF Amount on such date; provided, however, that at the time of the making of such Restricted Payments are and immediately after giving effect to such Restricted Payments made in reliance on subclause (ix)(B), the Total Leverage Ratio on such date, calculated on a Pro Forma Basis to give effect to any such Restricted Payment, is not in excess of 5.00 to 1.00;
(x) after an IPO, Holdings may distribute and redeem rights under any stockholder rights plan;
(xi) any Subsidiary may repurchase its Equity Interests held by minority shareholders or interest holders in a transaction permitted by Section 6.04; and
(xii) the Borrower and Holdings may utilize proceeds of the Loans made on a pro rata basis the Effective Date and the term loans made under the First Lien Credit Agreement on the Effective Date to all such holders in accordance with their respective Equity Interests in such Permitted J/V.pay the Dividend.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation defeasance, cancelation or termination of any such Indebtedness, or any other payment (including any payment under any Hedging Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) payment payments of Indebtedness created under the this Agreement or any other Loan DocumentsDocument;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than any payments in respect of Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) mandatory prepayments of (A) Indebtedness under the First Lien Credit Agreement, (B) Permitted Second Priority Refinancing Indebtedness, (C) Other First Lien Secured Indebtedness and (D) Alternative Incremental Facility Indebtedness, and, in each case, Refinancing Indebtedness in respect thereof;
(iv) prepayments of intercompany Indebtedness permitted hereby owed by Holdings, the Borrower or any Subsidiary to Holdings, the Borrower or any Subsidiary, other than prepayments prohibited by the subordination provisions governing such Indebtedness;
(v) refinancings of Indebtedness to with the extent proceeds of other Indebtedness permitted by under Section 6.01;
(ivvi) payment payments of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such IndebtednessIndebtedness in transactions permitted hereunder;
(vii) payments of or in respect of Indebtedness made solely with Qualified Equity Interests in Holdings or the conversion of any Indebtedness into Qualified Equity Interests of Holdings; and
(vviii) repayments oncash expenditures to prepay, reductions ofpurchase, forgiveness redeem, retire, acquire or defease Indebtedness of Holdings, the Borrower or any Subsidiary not in excess, on the termination date any such expenditure is made, of an amount equal to the Parent Note so long assum of (A) the amount of Qualifying Equity Proceeds available on such date and not previously applied to Specified Uses, in any caseplus (B) if there is no ECF Shortfall Amount outstanding and the Total Leverage Ratio on such date, after giving calculated on a Pro Forma Basis to give effect to any such repaymentexpenditure, reductionis not in excess of 5.25 to 1.00, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyAvailable ECF Amount on such date.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock, (iii) provided no Event of Default is continuing or would result therefore, Holdings and the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings, the Borrower and its Subsidiaries; provided that the amount thereof, taken together with any Subsidiary payments or transfers of cash, assets or debt securities pursuant to clause (f) of Section 6.09, do not exceed $15,000,000 in any fiscal year, (iv) provided no Event of Default is continuing or would result therefrom, the Borrower may pay dividends to Holdings at any time in such amounts as may be necessary to permit Holdings to pay its expenses and liabilities incurred in the ordinary course (other than payments in respect of Indebtedness or Restricted Payments), (v) provided no Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments to Holdings, and Holdings may, in turn, make such Restricted Payments to the BorrowerParent (x) if the Leverage Ratio (determined on a pro forma basis after giving effect to such Restricted Payment) as of the last day of the period of four consecutive fiscal quarters most recently ended on or prior to the date of such Restricted Payment is less than 4.00 to 1.00 or (y) otherwise, in an aggregate amount not to exceed 50% of Quarterly Excess Cash Flow with respect to each fiscal quarter of the Borrower ending on or after September 30, 2007 in which Quarterly Excess Cash Flow is greater than $0 minus 100% of the absolute value of Quarterly Excess Cash Flow with respect to each fiscal quarter of the Borrower ending on or after September 30, 2007 in which Quarterly Excess Cash Flow is less than $0 minus the amount of any Subsidiary other Designated Excess Cash Expenditures made with such Quarterly Excess Cash Flow, (vi) Restricted Payments in amounts as shall be necessary to make Tax Payments; provided that all Restricted Payments made pursuant to this clause (vi) are used by the Parent or Holdings for the purpose specified in this clause (vi) within 30 days of receipt thereof, (vii) provided no Event of Default is a Loan Party continuing or would result therefrom, the Borrower may from time to time pay cash dividends to Holdings and Holdings may, in turn, use the proceeds thereof to pay cash dividends to the Parent, in each case in an amount not in excess of the regularly scheduled cash interest payable during the next period of 30 days on any Qualifying Parent Indebtedness (including Base Ultimate Parent QPI and Base Parent QPI), provided, however, that (A) any such dividends relating to any such cash interest payment must be paid not earlier than 30 days prior to the date when such cash interest is required to be paid by the Parent or the Ultimate Parent, as applicable, and the proceeds must (except to the extent prohibited by applicable subordination provisions) be applied by the Parent or the Ultimate Parent, as applicable, to the payment of such interest when due, (B) no payment of dividends may be made pursuant to this clause (vii) in respect of Indebtedness of the Parent or Ultimate Parent, as applicable, unless at the time of the incurrence of such Indebtedness (other than Base Parent QPI or Base Ultimate Parent QPI outstanding on the Closing Date), and after giving effect thereto, the QPI Issuance Conditions were satisfied, (C) no dividends may be made pursuant to this clause (vii) in respect of the Indebtedness described in clause (a)(ii) of the definition of Existing Parent Indebtedness and (D) the Borrower and its Subsidiaries shall be in Pro Forma Compliance after giving effect to the payment of any such dividends pursuant to this clause (vii) and (viii) provided no Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments to any other Subsidiary that is a Loan PartyHoldings, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided thatmay, in each turn, make such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders Parent in an aggregate amount not to exceed $10,000,000 during any fiscal year of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.the Borrower.
(b) No Loan Party willThe Parent, Holdings and the Borrower will not, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Senior Subordinated Debt, Permitted Subordinated Indebtedness, Qualifying Parent Indebtedness, Non-Cash Pay Debt or other subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) prepayment of Capital Lease Obligations in an aggregate cumulative amount from and after the Closing Date not exceeding $5,000,000;
(vi) provided no Event of Default is continuing or would result therefrom, Optional Repurchases of other Indebtedness (x) if the Leverage Ratio (determined on a pro forma basis after giving effect to such Optional Repurchase) as of the last day of the period of four consecutive fiscal quarters most recently ended on or prior to the date of such Optional Repurchase is less than 4.00 to 1.00 or (y) involving cumulative expenditures in any fiscal year not in excess of an amount equal to the Borrower’s Portion of Excess Cash Flow for the immediately preceding fiscal year less the amount of other Designated Excess Cash Expenditures made with such Borrower’s Portion of Excess Cash Flow;
(vii) provided no Event of Default is continuing or would result therefrom, Optional Repurchases of other Indebtedness made with Designated Equity Proceeds;
(viii) redemptions of the Senior Unsecured Notes and the Senior Subordinated Notes contemplated by Section 4.01(b); and
(vix) repayments onprovided no Event of Default is continuing or would result therefrom, reductions ofOptional Repurchases of other Indebtedness made by the Parent with the proceeds of the issuance of Equity Interests by the Parent to the Ultimate Parent or capital contributions from the Ultimate Parent to the Parent.
(c) The Parent, forgiveness Holdings and the Borrower will not, and will not permit any Subsidiary to, furnish any funds to, make any Investment in, or provide other consideration to any other Person (including an Unrestricted Subsidiary) for purposes of enabling such Person to, or otherwise permit any such Person to, make any Restricted Payment or other payment or distribution restricted by this Section that could not be made directly by Holdings or the termination Borrower in accordance with the provisions of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Partythis Section.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may declare and pay to make dividends with respect to its common or preferred stock payable solely in additional shares the same class of its common or preferred stock, Equity Interests of such Person;
(ii) to make dividends or other distributions payable to the Credit Parties (directly or indirectly through its Subsidiaries);
(iii) after an offering of Qualified Equity Interests completed after the Closing Date, an amount equal to 6% per annum of the Net Cash Proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from any Subsidiary such offering(s) completed after the Closing Date;
(iv) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Payment or would immediately result therefrom, the Borrower may make Restricted Payments in the form of cash dividends payable with respect to shares of the Borrower’s Series A Convertible Preferred Stock in an amount not to exceed $2,000,000 per annum provided that, any Subsidiary that on a Pro Forma Basis, immediately after giving effect to such Restricted Payment, the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) prior to such date and for the Test Period ending on such date, is a Loan Party may make less than or equal to 0.25:1.00 less than the Total Net Leverage Ratio required to then comply with each of the Financial Covenants then in effect;
(v) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Payments to any other Subsidiary that is a Loan PartyPayment or would immediately result therefrom, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions additional Restricted Payments in an aggregate amount not to Holdings for payment exceed the Available Amount as of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdingssuch date; provided that, solely to the extent that such Restricted Payment is made with any portion of the Available Amount described in clause (a) of the definition thereof, on a Pro Forma Basis, immediately after giving effect to such Restricted Payment, the Manager or use of proceeds thereof and all related pro forma adjustments, the BorrowerTotal Net Leverage Ratio, recomputed as the case may be, and incurred primarily in connection with the business of the Borrowerlast day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) prior to such date and for the Test Period ending on such date, is less than or equal to 3.00:1.00;
(vi) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Payment or would immediately result therefrom, the Borrower may make additional unlimited Restricted Payments; provided that, on a Pro Forma Basis, immediately after giving effect to such Restricted Payment, the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) prior to such date and for the Test Period ending on such date, is less than or equal to 1.50:1.00; and
(vii) so long as no Event of Default shall have occurred and is continuing or would occur as a result thereoftherefrom, (iv) the Borrower may make distributions to Holdings pay dividends and/or redeem shares of common stock in an aggregate amount necessary not to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.exceed $35,000,000.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment prepayment (including voluntary and mandatory prepayments), repurchase or other distribution redemption (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment interest, fees or other distribution (whether in cash, securities or other property)amounts of any Junior Financing, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of the principal of any IndebtednessJunior Financing that has a substantially similar effect to any of the foregoing, in each case, prior to the scheduled maturity thereof (excluding any payments of regularly scheduled principal, interest, fees, expenses and indemnification obligations in compliance with the terms of this Agreement) (any of the foregoing, a “Restricted Debt Payment”), except:
(i) payment mandatory prepayments of Indebtedness created under any Junior Financing (other than Subordinated Indebtedness) not otherwise prohibited by the Loan Documentsterms of this Agreement, including mandatory prepayments made with Declined Proceeds;
(ii) payment Permitted Refinancings of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness permitted by Section 6.1;
(iii) refinancings the conversion of Indebtedness any Junior Financing to Equity Interests (other than Disqualified Equity Interests) of the extent permitted by Section 6.01Borrower;
(iv) payment so long as no Event of secured Indebtedness Default has occurred and is continuing at the time of making such Restricted Debt Payment or would immediately result therefrom, additional Restricted Debt Payments in respect of any Junior Financings in an aggregate amount not to exceed the Available Amount as of such date; provided that, solely to the extent that becomes due as a result such Restricted Debt Payment is made with any portion of the voluntary sale or transfer Available Amount described in clause
(a) of the property definition thereof, on a Pro Forma Basis, immediately after giving effect to such Restricted Debt Payment , the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or assets securing are actually delivered, if earlier) prior to such Indebtednessdate and for the Test Period ending on such date, is less than or equal to 3.00:1.00;
(v) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Debt Payment or would immediately result therefrom, additional unlimited Restricted Debt Payments ; provided that, on a Pro Forma Basis, immediately after giving effect to such Restricted Debt Payment, the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) and for the Test Period ending on such date, is less than or equal to 1.50:1.00;
(vi) additional Restricted Debt Payments in an aggregate amount not to exceed $10 million; and
(vA) repayments onRestricted Debt Payments with Eligible Equity Proceeds, reductions ofto the extent such Eligible Equity Proceeds have not otherwise been applied to make any Investment, forgiveness Restricted Payment or Restricted Debt Payment hereunder and do not increase the Available Amount, (B) the conversion of all or the termination any portion of any Junior Financing into Qualified Equity Interests of the Parent Note so long asBorrower, in any case(C) to the extent constituting a Restricted Debt Payment , after giving effect payment-in-kind of interest with respect to any such repaymentJunior Financing that is permitted under Section 6.1, reduction, forgiveness or termination any other transactions and (D) Restricted Debt Payments as part of an “applicable high yield discount obligation” catch up payment with respect to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyIndebtedness permitted by Section 6.1.
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Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary to, declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings the Borrower may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common or stock, and, with respect to its preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock;
(ii) any Subsidiary Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(iii) consistent with past practice, the Borrower may make Restricted Payments pursuant to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any and in accordance with stock option plans or other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) benefit plans for management or employees of the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, its Subsidiaries; and
(iv) consistent with past practice and subject to any increases approved by the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations board of directors of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising Borrower may declare and pay cash dividends with respect to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as no Event of Default shall have occurred and be continuing or shall result therefrom after giving pro forma effect thereto; provided, that if such Restricted Payments cash dividends are made funded with Indebtedness permitted hereunder, the Borrower shall be in compliance with the financial covenants set forth in Section 6.12 both before and immediately after giving effect (including giving effect on a pro rata basis forma basis) to all the payment of such holders in accordance with their respective Equity Interests in dividends and the incurrence of such Permitted J/V.Indebtedness.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness permitted under Section 6.01, other than (x) payments in respect of Subordinated Indebtedness prohibited by the subordination provisions thereof and (y) payments in respect of Permitted Convertible Notes;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;; and
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such IndebtednessIndebtedness to the extent such sale or transfer is permitted by the terms of Section 6.05.; and
(v) repayments onwith respect to any Permitted Convertible Notes, reductions of(x) the Borrower shall be permitted to make regularly scheduled non-default interest, forgiveness of coupon payments or additional interest expressly required by the termination terms thereof, (y) the Borrower may convert or exchange such Permitted Convertible Notes for any Equity Interests of the Parent Note Borrower (together with cash in lieu of any fractional interest in any unit of such Equity Interests) pursuant to the terms of such Permitted Convertible Notes and (z) so long as, in any case, as at the time thereof and immediately after giving effect to any such repayment, reduction, forgiveness (including on a pro forma basis) thereto (1) no Default or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from Event of Default exists or would result therefrom and (2) the Borrower is in compliance (on a pro forma basis) with the financial covenants contained in Section 6.12, the Borrower may repurchase, retire, redeem, acquire, cancel, terminate or defease such Permitted Convertible Notes pursuant to its terms (including, without limitation, the payment of cash in lieu of stock for the principal amount and/or conversion premium associated with such Permitted Convertible Notes, upon conversion of such Permitted Convertible Notes) in an aggregate principal amount not to exceed the original principal amount thereof, plus interest; provided that the Borrower shall not use the proceeds of any other Loan PartyLoans for any payment, repurchase, retirement, redemption, acquisition, cancellation, termination or defeasance permitted under this Section 6.08(b)(v).
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Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary (other than any Excluded Subsidiary) to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except
(ia) each of Holdings and the other Loan Parties may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common stock;
(b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(c) Holdings may make payments in respect of the Seller Earnout Obligation, provided that (i) the aggregate amount of all such payments made in reliance on this Section 6.08(c) shall not exceed $5,000,000 during any fiscal year of Holdings or preferred stock$20,000,000 during the term of this Agreement, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment no Default or Event of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is be continuing at the time of or would occur after giving effect to each such payment and (iii) no such payment shall be made prior to the eighteen-month anniversary of the Effective Date;
(d) Holdings may make regularly scheduled cash interest payments in respect of the Subordinated Seller Notes, provided, that (i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to each such payment and (ii) the aggregate amount of all such cash interest payments permitted to be paid under this clause (i) shall not exceed $300,000 during any fiscal quarter of Holdings; and
(e) the Loan Parties may make Restricted Payments (including without limitation, payments of principal under the Subordinated Seller Notes, payments of interest under the Subordinated Seller Notes not otherwise permitted under clause (d) above, payments in respect of the Seller Earnout Obligation not permitted under clause (c) above and payments of principal in respect of any unsecured Indebtedness incurred pursuant to Section 6.01(l)) not otherwise permitted under clauses (a) through (d) of this Section 6.08, provided that (i) the Fixed Charge Coverage Ratio for the period of twelve consecutive months most recently ended prior to the making of each such Restricted Payment for which financial statements are available (determined on a pro forma basis as if such Restricted Payment and all borrowings related thereto had occurred on the first day of such period) shall equal or exceed 1.15 to 1.00, (ii) the Borrowers shall have provided to the Administrative Agent a result thereofcertificate of a Financial Officer of the Borrowers setting forth a calculation of the Fixed Charge Coverage Ratio on a pro forma basis after giving effect to the making of each such Restricted Payment demonstrating compliance with the foregoing clause (i), which certificate shall be in form and substance satisfactory to the ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (▇▇▇) on a pro forma basis, at all times during the period of ninety (90) days prior to and during the ninety (90) days after the making of each such Restricted Payment, Availability (determined as if all Revolving Loans incurred to fund such Restricted Payment had occurred on the ninetieth day prior to the actual making of such Restricted Payment) shall equal or exceed the greater of (A) 17.5% of the Aggregate Revolving Commitments in effect at such time and (B) $65,250,000, (iv) no Default or Event of Default shall have occurred and be continuing at the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) time of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to each such Restricted Payment and (v) no such Restricted Payment shall be made under this clause (e) prior to the eighteen-month anniversary of the Effective Date. For the avoidance of doubt, nothing set forth in this Section 6.08 shall restrict the Excluded Subsidiaries from making any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyRestricted Payment.
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Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, ;
(ii) any Subsidiary Subsidiaries of the Borrower may make Restricted Payments to the BorrowerBorrower and to wholly owned Subsidiaries of the Borrower and may declare and pay dividends ratably with respect to their Equity Interests;
(iii) if at the time thereof and after giving effect thereto no Default has occurred and is continuing, the Borrower may pay dividends or make loans to Holdings at such times and in such amounts, not exceeding $1,000,000 during any Subsidiary that fiscal year, as shall be necessary to permit Holdings to discharge its permitted liabilities (other than to make any payments with respect to the Holdings Senior Discount Debentures);
(iv) following April 15, 2003, if at the time thereof and after giving effect thereto no Default has occurred and is a Loan Party continuing, the Borrower may pay dividends or make loans to Holdings at such times and in such amounts, not exceeding $14,420,000 during any fiscal year, as shall be necessary to permit Holdings to pay, as and when due, interest on the Holdings Senior Discount Debentures accrued subsequent to April 15, 2003;
(v) Holdings may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings and its Subsidiaries, including the redemption or purchase of shares of common stock of Holdings held by former employees of Holdings or any Subsidiary following the termination of their employment, if (A) at the time thereof and after giving effect thereto no Default has occurred and is continuing and (B) after giving effect to any other Subsidiary that is a Loan Partysuch Restricted Payment, and any Subsidiary that is not a Loan Party may make the aggregate cumulative amount of Restricted Payments made 100 pursuant to this clause (v) shall not exceed the sum of (1) $2,000,000 during any other Subsidiaryfiscal year or (2) $10,000,000 at any time during the term of this Agreement, plus the amount of Net Cash Proceeds received by Holdings and its Subsidiaries after the Effective Date and prior to making such Restricted Payment from the issuance of additional shares of its common stock to members of management or employees of Holdings and its Subsidiaries; provided that the promissory notes permitted under Section -------- 6.04(g) may be forgiven or returned without regard to the limitation in clause (iiiB) above and the forgiveness or return thereof shall not be treated as Restricted Payments for purposes of determining compliance with such clause (B) above;
(vi) the Borrower may pay cash dividends or make distributions loans to Holdings for payment of reasonable out-of-pocket operating in such amounts and administrative costs at such times as Holdings makes Restricted Payments permitted by clause (v) above; and
(vii) if at the time thereof and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as after giving effect thereto no Default shall have has occurred and is continuing or would occur as a result thereofcontinuing, (iv) the Borrower may pay dividends or make distributions loans to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state such amounts and local income Taxes directly attributable to (or arising at such times as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings required to permit Holdings to invest such cash dividends in pay, as and when due, income taxes payable by Holdings with respect to the Borrowerconsolidated, combined tax filing group that includes the Borrower and its Subsidiaries; provided that, in each such case, Holdings actually and promptly uses such that dividends for such investments, or loans -------- pursuant to this clause (vii) each Loan Party may purchaseshall not at any time exceed the amount of income taxes that would then be payable by the Borrower and its Subsidiaries if the Borrower and its Subsidiaries were not a part of a consolidated, redeem combined tax filing group with Holdings or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.other Person.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness other than payments in respect of the Existing Subordinated Debt or the Additional Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and;
(v) repayments onpayment of interest on the Holdings Senior Discount Debentures payable solely by the issuance by Holdings of additional Holdings Senior Discount Debentures, reductions ofprovided that after April 15, forgiveness 2003, Holdings will be -------- permitted to pay interest in cash on the Holdings Senior Discount Debentures as and when due;
(vi) payment of intercompany Indebtedness between or among the termination Borrower and its Subsidiaries permitted under clause (iv) of Section 6.01(a) and payment of Indebtedness permitted under clauses (viii) and (ix) of Section 6.01(a);
(vii) payments, in an aggregate amount not to exceed $25,000,000, to purchase Existing Senior Subordinated Notes or Additional Senior Subordinated Notes; provided that (A) at the time of and after giving -------- effect to each such purchase of Existing Senior Subordinated Notes or Additional Senior Subordinated Notes, as the case may be, (1) no Default shall have occurred and be continuing and (2) the ratio of (x) Funded Senior Debt, to (y) Consolidated EBITDA for the period of four consecutive fiscal quarters of the Parent Note Borrower most recently ended, shall not be greater than 2.50 to 1.00; (B) all Existing Senior Subordinated Notes or Additional Senior Subordinated Notes, as the case may be, so long aspurchased shall be retired and canceled; and (C) for purposes of calculating the $25,000,000 limit on the amount of payments permitted by this clause (vii), the aggregate amount of such payments shall be calculated excluding the aggregate amount of accrued and unpaid interest on the Existing Senior Subordinated Notes or Additional Senior Subordinated Notes so purchased that is discharged as a result of such purchase;
(viii) payments, in any casean aggregate amount not exceeding the portion of the Net Cash Proceeds of an IPO reserved for such purpose in accordance with the proviso to Section 2.11(b), to purchase Existing Senior Subordinated Notes or Additional Senior Subordinated Notes within 30 Business Days after the date of such IPO; provided that (A) at the time of -------- and after giving effect to any each such repaymentpurchase of Existing Senior Subordinated Notes or Additional Senior Subordinated Notes, reductionas the case may be, forgiveness no Default shall have occurred and be continuing; (B) all Existing Senior Subordinated Notes or termination any other transactions Additional Senior Subordinated Notes, as the case may be, so purchased shall be retired and canceled; and (C) for purposes of determining the amount of the Net Cash Proceeds of such IPO applied to purchase Existing Senior Subordinated Notes or Additional Senior Subordinated Notes as permitted by this clause (viii), the aggregate amount of such payments shall be consummated simultaneously therewithcalculated excluding the aggregate amount of accrued and unpaid interest on the Existing Senior Subordinated or Additional Senior Subordinated Notes so purchased that is discharged as a result of such purchase;
(ix) payments, there is in an aggregate amount not to exceed $25,000,000, to purchase Holdings Senior Discount Debentures; provided that (A) at the time -------- of and after giving effect to each such purchase of Holdings Senior Discount Debentures, (1) no net cash outflow Default shall have occurred and be continuing and (2) the ratio of (x) Funded Senior Debt, to Holdings from (y) Consolidated EBITDA for the period of four consecutive fiscal quarters of the Borrower or any other Loan Party.most recently ended, shall not be greater than 1.50 to 1.00; (B) the aggregate amount of such payments for all such purchases shall not exceed the amount of Available Excess Cash Flow;
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Restricted Payments; Certain Payments of Indebtedness. (a) No The Loan Party willParties will not, nor and will it not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except as long as no Default or incur any obligation (contingent Event of Default exists or otherwise) to do so, except would arise therefrom; (i) Holdings the Loan Parties may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common or preferred stock, Permitted Dividends; and (ii) any Subsidiary the Parent may repurchase its Capital Stock; and (iii) the Parent may make Restricted Payments pursuant to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to Trans World Entertainment Corporation 2005 Long Term and Incentive Share Award Plan and any other Subsidiary that is a plans of the Loan PartyParties existing on the Closing Date and described in the Parent’s Form 10-K for Fiscal Year ended January 29, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary2005, each as in effect as of the Closing Date; provided, further however, if the payments made in connection with clauses (i), (ii), or (iii) hereof after the Borrower may make distributions to Holdings for payment Closing Date, plus the sum of reasonable out-of-pocket operating and administrative costs and expenses (x) the aggregate consideration paid or payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with all Permitted Acquisitions consummated after the business Closing Date and (y) the aggregate consideration paid or payable in connection with all Permitted Minority Investments made after the Closing Date are in an aggregate amount equal to or greater than $80,000,000, then as a condition to the making of such proposed payment, (x) the Payment Conditions shall have been satisfied and (y) the Borrowers shall have delivered to the Administrative Agent a certificate of a Financial Officer of the BorrowerLead Borrower stating that the Payment Conditions have been satisfied, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations together with supporting documentation demonstrating satisfaction of the BorrowerPayment Conditions, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments which supporting documentation shall be reasonably satisfactory to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Administrative Agent.
(b) No The Loan Party willParties will not, nor and will it not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, exceptexcept as long as no Default or Event of Default has occurred and is continuing or would result from such payments:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtednessother Indebtedness permitted hereunder;
(iiiii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; , and
(viii) repayments onthe Loan Parties may repay (including by means of a prepayment) any Existing Indebtedness, reductions ofprovided, forgiveness of or the termination of the Parent Note so long asthat, in any case, (a) before and after giving effect to any such repaymentpayment in respect of the Existing Indebtedness, reductionthe Payment Conditions shall have been satisfied and (b) the Borrowers shall have delivered to the Administrative Agent a certificate of a Financial Officer of the Lead Borrower stating that the Payment Conditions have been satisfied, forgiveness or termination any other transactions together with supporting documentation demonstrating satisfaction of the Payment Conditions, which supporting documentation shall be reasonably satisfactory to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyAdministrative Agent.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any other Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur enter into any obligation (contingent or otherwise) transaction the economic effect of which is substantially similar to do soany Restricted Payment, except (i) Holdings and the Borrower may declare and pay dividends with respect to its common or preferred their capital stock payable solely in additional shares of its their respective common or preferred stock, (ii) any Subsidiary may make Restricted Payments to Subsidiaries (other than the Borrower, any Subsidiary that is a Loan Party ) may make Restricted Payments declare and pay dividends ratably with respect to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower Holdings may make distributions Restricted Payments, not exceeding $3,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, Restricted Subsidiaries; (iv) so long as no Default shall have occurred and is be continuing or would occur as a result thereoffrom the making of such payment, (iv) the Borrower may make distributions pay dividends to Holdings at such times and in an amount such amounts as shall be necessary to enable permit Holdings to pay when duedischarge, to the extent permitted hereunder, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, permitted liabilities; (v) [intentionally omitted]on and after the Leverage Target Date, (vi) Potbelly Franchising Holdings may declare and pay dividends in cash with respect to its convertible preferred stock outstanding as of the Amendment No. 4 Effective Date in an amount not exceeding $40,000,000 in any fiscal year and the Borrower may declare and pay dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually declare and promptly uses pay such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viiivi) Permitted J/Vs at any time after the consummation of the Structured Note Financing, the Borrower may make Restricted Payments declare and pay a dividend to the holders of their Equity Interests Holdings so long as (x) the aggregate amount of such Restricted Payments are made on a pro rata basis dividend shall not exceed the principal amount of the Structured Note Bridge Indebtedness outstanding at the time such dividend is paid plus accrued interest thereon, (y) no Default has occurred and is continuing or would result therefrom and (z) immediately upon receipt thereof, Holdings shall apply all of the proceeds of such dividend to all such holders repay in accordance with their respective Equity Interests in such Permitted J/V.full the Structured Note Bridge Indebtedness then outstanding.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any voluntary payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any High Yield Notes, any Qualifying Holdings Debt or any Qualifying Borrower Indebtedness (collectively "Specified Indebtedness"), or any voluntary payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, 112 cancellation or termination of any IndebtednessSpecified Indebtedness (or enter into any transaction the economic effect of which is substantially similar to any of the foregoing), except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment , provided no Default has occurred and is continuing or would result therefrom, payments of regularly scheduled interest and principal payments as and when due in respect of any Specified Indebtedness other than Qualifying Borrower Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Party.
Appears in 1 contract
Sources: Credit Agreement (Williams Communications Group Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(i) Holdings Any Loan Party or any Subsidiary of a Loan Party may declare and pay cash dividends with respect or make other distributions of property to its common or preferred stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and provided that any Subsidiary that is not a Loan Party may make such Restricted Payments made to BCF Holdings or Parent under this clause (i) shall be used (w) to pay general corporate and overhead expenses incurred by BCF Holdings or Parent in the ordinary course of business, or the amount of any other Subsidiaryindemnification claims made by any director or officer of BCF Holdings or Parent, (iiix) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating pay franchise taxes and administrative costs other fees, taxes and expenses payable by Holdings, required to maintain the Manager corporate existence of BCF Holdings or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereofParent, (ivy) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries taxes that are due and payable by BCF Holdings as the parent of a consolidated group, group that includes Parent and its Subsidiaries or (vz) [intentionally omitted], to make other payments that BCF Holdings and Parent are not otherwise prohibited from making pursuant to this Agreement;
(viii) Potbelly Franchising may declare The Loan Parties and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs their Subsidiaries may make Restricted Payments for the purpose of paying amounts owing under the Advisory Agreement, to the holders extent permitted under SECTION 6.07;
(iii) The Loan Parties and their Subsidiaries may make Restricted Payments consisting of Permitted Dispositions of the type described, and subject to the limitations contained, in the definition thereof;
(iv) The Loan Parties and their Equity Interests Subsidiaries may make Restricted Payments constituting repurchases of equity interests in BCF Holdings or any Subsidiary (or distributions to BCF Holdings for such purpose) in connection with the exercise of stock options or warrants if such equity interests represent a portion of the exercise price of such option or warrants, provided that Restricted Payments made pursuant to this clause (iv) shall not exceed $5,000,000 in any Fiscal Year of BCF Holdings;
(v) in addition to the foregoing Restricted Payments, the Borrower may declare, pay and/or make the Dividend Payment; and
(vi) so long as such (x) no Default or Event of Default has occurred and is continuing, (y) on a Pro Forma Basis, the Borrower would be in compliance with each of the Financial Performance Covenants for the most recently ended Fiscal Quarter for which financial statements have been or are then required to have been delivered and (z) the Consolidated Leverage Ratio as of the last day of the most recently ended Fiscal Quarter for which financial statements have been or are then required to have been delivered would be less than or equal to 3.5 to 1.0, any Loan Party or any Subsidiary may make any Restricted Payment;
(vii) so long as (x) no Default or Event of Default has occurred and is continuing and (y) on a Pro Forma Basis, the Borrower would be in compliance with each of the Financial Performance Covenants for the most recently ended Fiscal Quarter for which financial statements have been or were required to be delivered, any Loan Party and any of its Subsidiaries may make any Restricted Payments are from the portion of the Available Amount such Loan Party or such Subsidiary elects to apply pursuant to this clause (vii); and
(viii) other Restricted Payments in an aggregate amount, when taken together with all other Restricted Payments made on a pro rata basis pursuant to all such holders in accordance with their respective Equity Interests in such Permitted J/V.this clause (viii), not to exceed $25.0 million.
(b) No Loan Party will, nor will it permit any Subsidiary of its Subsidiaries to, make or agree to pay or make, directly or indirectly, make any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Specified Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Specified Indebtedness, except:
(i) payment payments in Capital Stock (so long as no Change of Indebtedness created under Control would result therefrom) and payments of interest in-kind of the Loan DocumentsParties and their Subsidiaries;
(ii) payment payments of regularly scheduled interest in respect of any Subordinated Indebtedness (subject to applicable subordination provisions relating thereto);
(iii) payments of principal (including mandatory prepayments) and principal payments interest as and when due in respect of any Specified Indebtedness (other than Subordinated Indebtedness);
(iiiiv) prepayment in whole or in part of Specified Indebtedness from any refinancing of such Specified Indebtedness with the proceeds of (x) any equity securities (other than Permitted Cure Securities) issued or capital contributions received by any Loan Party or any Subsidiary for the purpose of making such payment or prepayment and/or (y) other Indebtedness not prohibited hereunder;
(v) so long as no Default or Event of Default has occurred and is continuing, any Loan Party and any of its Subsidiaries may make payments in respect of Specified Indebtedness from the portion of the Available Amount such Loan Party or such Subsidiary elects to apply pursuant to this clause (v); and
(vi) refinancings of Specified Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Partyunder this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Other than as specified in the first sentence of Section 5.11, neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred capital stock, (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower Holdings may make distributions Restricted Payments, not exceeding $2,000,000 during any fiscal year, pursuant to Holdings and in accordance with stock option plans or other benefit plans for payment directors, management or employees of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager Borrower and the Subsidiaries, including the redemption or purchase of capital stock of Holdings held by former directors, management or employees of Holdings, the Borrower, as the case may be, and incurred primarily in connection with the business Borrower or any Subsidiary following termination of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereoftheir employment, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings at such times and in such amounts, not exceeding $2,000,000 during any fiscal year, as shall be necessary to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire discharge its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, permitted liabilities and (viiiv) Permitted J/Vs the Borrower and the Joint Venture Holding Companies may make Restricted Payments to Holdings at such times and in such amounts (but not prior to the holders fifth anniversary of their Equity Interests so long the date of issuance of the Cumulative Preferred Stock) as shall be necessary to enable Holdings, after such fifth anniversary, to pay dividends in cash on such Cumulative Preferred Stock as and when declared and payable, provided that, at the time of each Restricted Payment made in reliance upon this clause (v) and after giving pro forma effect to such payment, the Leverage Ratio shall not exceed 1.50 to 1.00, (vi) Holdings, the Borrower and the Subsidiaries may make Restricted Payments are made as and to the extent contemplated by the Recapitalization Agreement and (vii) Holdings may make Restricted Payments on account of the purchase, redemption or repurchase of the Cumulative Preferred Stock with the net proceeds of a pro rata basis substantially concurrent IPO, provided that, after giving effect to all such holders in accordance with their respective Equity Interests in such Permitted J/V.purchase, redemption or repurchase, no Default or Event of Default shall have occurred and be continuing.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than (A) payments in respect of the Subordinated Debt and the Junior Subordinated Note prohibited by the subordination provisions thereof, (B) principal payments in respect of the Junior Subordinated Note and (C) cash interest payments in respect of the Junior Subordinated Note unless, in the case of any such payment specified in this clause (C), at the time of such payment and after giving pro forma effect thereto the Leverage Ratio shall not exceed 1.50 to 1.00 and such payment is due and payable on or after the fifth anniversary of the date of issuance of the Junior Subordinated Note;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) payments on account of the purchase, redemption or repurchase of the Subordinated Debt with the net proceeds of a substantially concurrent IPO, provided that
(i) after giving effect to such purchase, redemption or repurchase, no Default or Event of Default shall have occurred and be continuing, (ii) no more than 35% of the aggregate principal amount of the Subordinated Debt issued on or prior to the Effective Date is purchased, redeemed or repurchased and (iii) at the time of any such payment, the net proceeds of such IPO remaining after such payment and any Restricted Payment made pursuant to clause (a)(vii) of this Section 6.08 are applied to prepay Term Borrowings pursuant to Section 2.11(a) (or, if no such Borrowings are outstanding or the outstanding amount of such Borrowings is less than the amount of the required prepayments, then to reduce Revolving Commitments pursuant to Section 2.08(b) by an aggregate amount equal to the amount of the required prepayment, or the excess of such amount over the outstanding Term Borrowings, as the case may be);
(vi) payments in respect of any Permitted Receivables Facility; and
(vvii) repayments on, reductions of, forgiveness repayment of or certain Indebtedness of certain Foreign Subsidiaries on the termination Effective Date as specified in the first sentence of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartySection 5.11.
Appears in 1 contract
Sources: Credit Agreement (Semiconductor Components Industries LLC)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, ;
(ii) any Subsidiary Subsidiaries of the Borrower may make Restricted Payments to the BorrowerBorrower and to wholly owned Subsidiaries of the Borrower and may declare and pay dividends ratably with respect to their Equity Interests;
(iii) if at the time thereof and after giving effect thereto no Default has occurred and is continuing, the Borrower may pay dividends or make loans to Holdings at such times and in such amounts, not exceeding $1,000,000 during any Subsidiary that fiscal year, as shall be necessary to permit Holdings to discharge its permitted liabilities (other than to make any payments with respect to the Holdings Senior Discount Debentures);
(iv) following April 15, 2003, if at the time thereof and after giving effect thereto no Default has occurred and is a Loan Party continuing, the Borrower may pay dividends or make loans to Holdings at such times and in such amounts, not exceeding $14,420,000 during any fiscal year, as shall be necessary to permit Holdings to pay, as and when due, interest on the Holdings Senior Discount Debentures accrued subsequent to April 15, 2003;
(v) Holdings may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Holdings and its Subsidiaries, including the redemption or purchase of shares of common stock of Holdings held by former employees of Holdings or any Subsidiary following the termination of their employment, if (A) at the time thereof and after giving effect thereto no Default has occurred and is continuing and (B) after giving effect to any other Subsidiary such Restricted Payment, the aggregate cumulative amount of Restricted Payments made pursuant to this clause (v) shall not exceed the sum of (1) $2,000,000 during any fiscal year or (2) $10,000,000 in the aggregate from the Effective Date, plus the amount of Net Cash Proceeds received by Holdings and its Subsidiaries after the Effective Date and prior to making such Restricted Payment from the issuance of additional shares of its common stock to members of management or employees of Holdings and its Subsidiaries; provided that the promissory notes permitted under Section 6.04(g) may be forgiven or returned without regard to the limitation in clause (B) above and the forgiveness or return thereof shall not be treated as Restricted Payments for purposes of determining compliance with such clause (B) above;
(vi) the Borrower may pay cash dividends or make loans to Holdings in such amounts and at such times as Holdings makes Restricted Payments permitted by clause (v) above and clause (ix) below;
(vii) if at the time thereof and after giving effect thereto no Default has occurred and is a Loan Partycontinuing, the Borrower may pay dividends or make loans to Holdings in such amounts and at such times as required to permit Holdings to pay, as and when due, income taxes payable by Holdings with respect to the consolidated, combined tax filing group that includes the Borrower and its Subsidiaries; provided that dividends or loans pursuant to this clause (vii) shall not at any Subsidiary time exceed the amount of income taxes that is would then be payable by the Borrower and its Subsidiaries if the Borrower and its Subsidiaries were not a Loan Party part of a consolidated, combined tax filing group with Holdings or any other Person;
(viii) the Borrower may pay cash dividends or make loans to Holdings in such amounts and at such times as Holdings makes payments to purchase Holdings Senior Discount Debentures as permitted by clauses (vii) and (viii) of Section 6.07(b); and
(ix) if at the time thereof and after giving effect thereto no Default has occurred and is continuing, Holdings may make Restricted Payments in cash from time to any other Subsidiarytime after the Restatement Effective Date in addition to those otherwise permitted under this Section 6.07(a); provided that after giving effect to each Restricted Payment made under this clause (ix), (iiia) the cumulative amount of all such Restricted Payments does not exceed the sum of (i) $25,000,000 plus (ii) (in the case of any Restricted Payments made after financial statements are available for the fiscal year ending January 3, 2004), during any fiscal year, 50% of Consolidated Net Income for the immediately preceding fiscal year; provided that Restricted Payments made in any fiscal year in reliance upon this clause (ii) may only be made after financial statements for the immediately preceding fiscal year have been made available pursuant to Section 5.01; and (b) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily shall be in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made compliance on a pro rata forma basis with Sections 6.13, 6.14, 6.15 and 6.17 after giving effect to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Restricted Payment; and (c) the Leverage Ratio, calculated on a pro forma basis, shall be less than 2.00 to 1.00.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest interest, stated premiums and principal payments as and when due in respect of any IndebtednessIndebtedness other than payments in respect of the Existing Subordinated Debt, the Additional Subordinated Debt or the Replacement Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and;
(v) repayments onpayment of interest on the Holdings Senior Discount Debentures payable solely by the issuance by Holdings of additional Holdings Senior Discount Debentures, reductions ofprovided that after April 15, forgiveness 2003, Holdings will be permitted to pay interest in cash on the Holdings Senior Discount Debentures as and when due;
(vi) payment of intercompany Indebtedness between or among the termination Borrower and its Subsidiaries permitted under clause (iv) of Section 6.01(a) and payment of Indebtedness permitted under clauses (viii) and (ix) of Section 6.01(a);
(vii) payments to purchase or redeem Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes; provided that (A) at the Parent Note so long astime of and after giving effect to each such purchase or redemption of Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes, as the case may be, (1) no Default shall have occurred and be continuing and (2) the Borrower and its Subsidiaries are in any casecompliance, on a pro forma basis after giving effect to any such repaymentpayments (and any Public Offering made or Replacement Subordinated Debt incurred), reductionwith the covenants contained in Sections 6.13, forgiveness 6.14, 6.15 and 6.17 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, as if such payment (and any Public Offering made or termination Replacement Subordinated Debt incurred to effect any such payments) had occurred on the first day of each relevant period for testing such compliance; and (B) all Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes, as the case may be, so purchased or redeemed shall be retired and canceled;
(viii) payments, in an aggregate amount not exceeding the portion of the Net Cash Proceeds of an IPO reserved for such purpose in accordance with the proviso to Section 2.11(b), to purchase Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes within 365 days after the date of such IPO; provided that (A) at the time of and after giving effect to each such purchase of Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes, as the case may be, no Default shall have occurred and be continuing; (B) all Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes, as the case may be, so purchased shall be retired and canceled; and (C) for purposes of determining the amount of the Net Cash Proceeds of such IPO applied to purchase Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes as permitted by this clause (viii), the aggregate amount of such payments shall be calculated excluding the aggregate amount of accrued and unpaid interest on the Existing Senior Subordinated Notes, Additional Senior Subordinated Notes, Holdings Senior Discount Debentures or Replacement Senior Subordinated Notes so purchased that is discharged as a result of such purchase;
(ix) the issuance of Equity Interests in Holdings to any holder of Holdings Senior Discount Debentures in exchange for Holdings Senior Discount Debentures; provided that (A) at the time of and after giving effect to such exchange, no Default shall have occurred and be continuing, (B) such exchange shall not be made in connection with any issuance of Equity Interests in Holdings to other transactions investors for cash consideration, (C) such exchange is made on an arm’s length basis with unrelated third parties and (D) all Holdings Senior Discount Debentures so exchanged shall be retired and canceled; and
(x) the repayment of (A) all amounts outstanding in respect of the Existing DAP Indebtedness, including accrued interest and fees and any prepayment penalties and all amounts necessary to terminate the DAP Synthetic Lease Agreement and purchase the property subject thereto.
(c) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic Purchase Agreement related to any Equity Interest of Holdings, the payments required to be consummated simultaneously therewithmade by Holdings are limited to amounts permitted to be paid under Section 6.07(a), there is no net cash outflow (ii) in the case of any Synthetic Purchase Agreement related to Holdings from any Restricted Indebtedness, the payments required to be made by Holdings, the Borrower or the Subsidiaries thereunder are limited to the amount permitted under Section 6.07(b) and (iii) in the case of any other Loan PartySynthetic Purchase Agreement, the obligations of Holdings, the Borrower and the Subsidiaries thereunder are subordinated to the Obligations on terms satisfactory to the Required Lenders.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Company will not, nor and will it not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings the Company may declare and pay dividends with respect to its common or preferred stock Capital Stock payable solely in additional shares of its common or preferred stockCapital Stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings the Company or any Wholly-Owned Subsidiary with respect to permit Holdings to invest such its Capital Stock and Wholly-Owned Subsidiaries may redeem for cash dividends in shares of Capital Stock held by the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investmentsCompany or any other Wholly-Owned Subsidiary, (viiiii) each Loan Party the Company may purchasemake Restricted Payments, redeem not exceeding $1,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or otherwise acquire other benefit plans for management or employees of the Company and its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan PartySubsidiaries, and (viiiiv) Permitted J/Vs so long as at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, the Company or any Subsidiary may make Restricted Payments in an aggregate amount not to exceed $10,000,000 for the holders Company and all Subsidiaries during any fiscal year of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.the Company.
(b) No Loan Party willThe Company will not, nor and will it not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness (subject to any subordination provisions thereof);
(iii) refinancings prepayment at the consummation of a Permitted Business Acquisition of Indebtedness to the extent permitted by Section 6.01assumed in connection with such Permitted Business Acquisition;
(iv) prepayment, purchase, redemption, retirement or other acquisition of the Subordinated Notes by exchange for or, within 90 days of such issuance or incurrence, out of the proceeds received from a substantially concurrent issue of new shares of its non-mandatorily redeemable Capital Stock or from a substantially concurrent incurrence of Consolidated Subordinated Indebtedness (including mandatorily redeemable Capital Stock);
(v) so long as at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, prepayment, purchase, redemption, retirement or other acquisition in cash of the Subordinated Notes in an amount not to exceed $1,000,000 in the aggregate for the period commencing on the date hereof and ending on the date that the Commitments are terminated and no Revolving Credit Exposure is outstanding; and
(vi) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Party.
Appears in 1 contract
Sources: Credit Agreement (Photronics Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings the Borrower may declare and pay dividends with respect to its common stock or preferred stock Qualified Preferred Stock payable solely in additional shares of its common stock or preferred stockQualified Preferred Stock, or make cash payments in lieu of fractional shares, (ii) any Subsidiary may make Restricted Payments to Subsidiaries (other than those directly owned, in whole or part, by the Borrower, any Subsidiary that is a Loan Party ) may make Restricted Payments declare and pay dividends ratably with respect to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir common stock, (iii) the Borrower may make distributions declare and pay cash dividends with respect to Holdings its common stock and effect repurchases, redemptions or other Restricted Payments with respect to its common stock, together in an aggregate amount in any fiscal year of the Borrower not to exceed 50% of Consolidated Net Income (if positive) for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business immediately preceding fiscal year of the Borrower, so long as ; provided that immediately prior and after giving effect to any such payment no Default or Event of Default shall have occurred and is be continuing or would occur as a result thereofand, immediately after giving effect to any such payment, the Borrower shall have Revolver Availability of more than $100,000,000, (iv) the Borrower may make distributions to Holdings pay cash dividends in an amount necessary not to enable Holdings exceed $60,000,000 in any fiscal year of the Borrower with respect to pay when dueany Qualified Preferred Stock; provided that (x) immediately prior and after giving effect to any such payment, its actual federal, state no Default or Event of Default shall have occurred and local income Taxes directly attributable to be continuing and (or arising y) only so long as a result of) the operations of the BorrowerFinancial Covenant Effectiveness Period is then occurring, the Manager Consolidated Fixed Charge Coverage Ratio for the period of four consecutive fiscal quarters most recently ended on or prior to the date of such payment, calculated on a pro forma basis as if such payment were made on the last day of such period (and their Subsidiaries that are due and payable by Holdings as excluding any such payments previously made pursuant to this clause during such four quarter period but attributed for purposes of this calculation to the parent last day of a consolidated groupprior period which day does not occur in such four quarter period) is not less than the ratio applicable to such period of four fiscal quarters under Section 6.12, (v) [intentionally omitted]the Borrower and the Subsidiaries may make Restricted Payments consisting of the repurchase or other acquisition of shares of, or options to purchase shares of, capital stock of the Borrower or any of its Subsidiaries from employees, former employees, directors or former directors of the Borrower or any Subsidiary (or their permitted transferees), in each case pursuant to stock option plans, stock plans, employment agreements or other employee benefit plans approved by the board of directors of the Borrower; provided that no Default has occurred and is continuing; and provided further that the aggregate amount of such Restricted Payments made after the Original Restatement Effective Date shall not exceed $10,000,000, (vi) Potbelly Franchising the Subsidiaries may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided thatthat the Borrower shall, within a reasonable time following receipt of any such payment, use all of the proceeds thereof for a purpose set forth in each such case, Holdings actually and promptly uses such Section 5.10(b) or a Refinancing Amendment (including the payment of dividends for such investmentsrequired or permitted pursuant to this Section 6.08(a)), (vii) each Loan Party the Borrower and the Subsidiaries may purchase, redeem or otherwise acquire its common or preferred declare and pay cash dividends with respect to the Equity Interests with set forth on Schedule 6.08(a) to the proceeds received from extent, and only to the substantially concurrent issuance extent, required pursuant to the terms of new common or preferred such Equity Interests or where any other agreement in effect on the consideration is the cancellation of Indebtedness owed to any Loan Party, Effective Date and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower may redeem or repurchase shares of the Borrower’s and/or its Subsidiaries’ (including Rite Aid Lease Management Company’s) Preferred Stock (A) solely with Net Cash Proceeds received by the Borrower from issuances of its common stock after the Original Restatement Effective Date, provided that any such Restricted Payments are made on a pro rata basis repurchase or redemption is effected within 150 days after the receipt of such proceeds or (B) with other funds available to all the Borrower if, immediately after giving effect to any such holders in accordance with their respective Equity Interests in such Permitted J/V.redemption or repurchase, the Borrower shall have Revolver Availability of more than $100,000,000.
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness (which, for purposes of this Section 6.08(b), shall include any Indebtedness, including the Borrower’s 8.5% Convertible Notes due May 2015, incurred pursuant to any of clauses (i) through (xx) of Section 6.01(a)), except:
(i) payment payments or prepayments or exchanges of Indebtedness (including Refinancing Indebtedness) created under the Senior Loan DocumentsDocuments (including any Refinancing Amendment executed in accordance with Section 6.01(c)) and prepayments, repurchases or redemptions of Additional Senior Debt made in accordance with Section 2.11(c);
(ii) payment payments of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness permitted pursuant to Section 6.01(a);
(iii) refinancings prepayments of Indebtedness permitted pursuant to clause (vii), (viii) or (ix) of Section 6.01(a) with the extent proceeds of, or in exchange for, Indebtedness permitted by pursuant to clause (vii), (viii) or (ix) of Section 6.016.01(a), respectively;
(iv) payment payments of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) provided no Default has occurred and is continuing or would result therefrom, Optional Debt Repurchases of Inside Indebtedness and, to the extent permitted by paragraph (c) of this Section, Optional Debt Repurchases of Outside Indebtedness;
(vi) repurchases, exchanges or redemptions of Indebtedness for consideration consisting solely of common stock of the Borrower or Qualified Preferred Stock or cash payments in lieu of fractional shares;
(vii) prepayments of Capital Lease Obligations in connection with the sale, closing or relocation of Stores;
(viii) prepayments and exchanges of Indebtedness in connection with the incurrence of Refinancing Indebtedness permitted pursuant to Section 6.01(a)(ii) or (x);
(ix) prepayments of Indebtedness permitted pursuant to Section 6.01(a)(iii), if permitted by the subordination provisions applicable to such Indebtedness; and
(vx) repayments onunless an Event of Default shall have occurred and be continuing, reductions of, forgiveness mandatory prepayments of or Indebtedness and interest under the termination New Notes.
(c) The Borrower and the Subsidiaries will not effect Optional Debt Repurchases of the Parent Note so long as, in any case, Outside Indebtedness unless immediately prior and after giving effect to any such repaymentOptional Debt Repurchases, reduction, forgiveness (x) no Default or termination any other transactions to Event of Default shall have occurred and be consummated simultaneously therewith, there is no net cash outflow to Holdings from continuing and (y) the Borrower or any other Loan Partyshall have Revolver Availability of more than $100,000,000.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willAllied Waste will not, nor will it permit any Subsidiary of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings Allied Waste may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred capital stock, ;
(ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock;
(iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries;
(iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for Taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01(b) and 6.10;
(v) Allied Waste and its Restricted Subsidiaries may make Restricted Payments to the Borrower, any Subsidiary extent required by the terms of its joint venture or similar agreements in effect on the Restatement Effective Date and listed on Schedule 6.08; provided that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Partyimmediately prior, and any Subsidiary that is not a Loan Party may make after giving effect to, such Restricted Payments to any other SubsidiaryPayment, (iii) the Borrower may make distributions to Holdings for payment no Default or Event of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, be continuing;
(ivvi) the Borrower or any Restricted Subsidiary may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings Allied Waste in an amount sufficient to permit Holdings Allied Waste to invest such pay cash dividends in the Borrowerrespect of its capital stock and Allied Waste may pay cash dividends in respect of its capital stock; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to that all such holders cash dividend payments in accordance with their respective Equity Interests in such Permitted J/V.
this clause (bvi) No Loan Party will, nor will it permit any Subsidiary to, make or agree are subject to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account the satisfaction of the purchase, redemption, retirement, acquisition, cancellation or termination following additional conditions on the date of any Indebtedness, except:
(i) such dividend payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Party.thereto:
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may declare and pay to make dividends with respect to its common or preferred stock payable solely in additional shares the same class of its common or preferred stock, Equity Interests of such Person;
(ii) to make dividends or other distributions payable to the Credit Parties (directly or indirectly through its Subsidiaries);
(iii) after an offering of Qualified Equity Interests completed after the Closing Date, an amount equal to 6% per annum of the Net Cash Proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from any Subsidiary such offering(s) completed after the Closing Date;
(iv) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Payment or would immediately result therefrom, the Borrower may make Restricted Payments in the form of cash dividends payable with respect to shares of the Borrower’s Series A Convertible Preferred Stock in an amount not to exceed $2,000,000 per annum provided that, any Subsidiary that on a Pro Forma Basis, immediately after giving effect to such Restricted Payment, the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) prior to such date and for the Test Period ending on such date, is a Loan Party may make less than or equal to 0.25:1.00 less than the Total Net Leverage Ratio required to then comply with each of the Financial Covenants then in effect;
(v) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Payments to any other Subsidiary that is a Loan PartyPayment or would immediately result therefrom, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions additional Restricted Payments in an aggregate amount not to Holdings for payment exceed the Available Amount as of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdingssuch date; provided that, solely to the extent that such Restricted Payment is made with any portion of the Available Amount described in clause (a) of the definition thereof, on a Pro Forma Basis, immediately after giving effect to such Restricted Payment, the Manager or use of proceeds thereof and all related pro forma adjustments, the BorrowerTotal Net Leverage Ratio, recomputed as the case may be, and incurred primarily in connection with the business of the Borrowerlast day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) prior to such date and for the Test Period ending on such date, is less than or equal to 3.00:1.00;
(vi) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Payment or would immediately result therefrom, the Borrower may make additional unlimited Restricted Payments; provided that, on a Pro Forma Basis, immediately after giving effect to such Restricted Payment, the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) prior to such date and for the Test Period ending on such date, is less than or equal to 1.50:1.00; and
(vii) so long as no Event of Default shall have occurred and is continuing or would occur as a result thereoftherefrom, (iv) the Borrower may make distributions to Holdings pay dividends and/or redeem shares of common stock in an aggregate amount necessary not to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.exceed $35,000,000.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment prepayment (including voluntary and mandatory prepayments), repurchase or other distribution redemption (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment interest, fees or other distribution (whether in cash, securities or other property)amounts of any Junior Financing, including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of the principal of any IndebtednessJunior Financing that has a substantially similar effect to any of the foregoing, in each case, prior to the scheduled maturity thereof (excluding any payments of regularly scheduled principal, interest, fees, expenses and indemnification obligations in compliance with the terms of this Agreement) (any of the foregoing, a “Restricted Debt Payment”), except:
(i) payment mandatory prepayments of Indebtedness created under any Junior Financing (other than Subordinated Indebtedness) not otherwise prohibited by the Loan Documentsterms of this Agreement, including mandatory prepayments made with Declined Proceeds;
(ii) payment Permitted Refinancings of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness permitted by Section 6.1;
(iii) refinancings the conversion of Indebtedness any Junior Financing to Equity Interests (other than Disqualified Equity Interests) of the extent permitted by Section 6.01Borrower;
(iv) payment so long as no Event of secured Indebtedness Default has occurred and is continuing at the time of making such Restricted Debt Payment or would immediately result therefrom, additional Restricted Debt Payments in respect of any Junior Financings in an aggregate amount not to exceed the Available Amount as of such date; provided that, solely to the extent that becomes due as a result such Restricted Debt Payment is made with any portion of the voluntary sale or transfer Available Amount described in clause (a) of the property definition thereof, on a Pro Forma Basis, immediately after giving effect to such Restricted Debt Payment , the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or assets securing are actually delivered, if earlier) prior to such Indebtednessdate and for the Test Period ending on such date, is less than or equal to 3.00:1.00;
(v) so long as no Event of Default has occurred and is continuing at the time of making such Restricted Debt Payment or would immediately result therefrom, additional unlimited Restricted Debt Payments ; provided that, on a Pro Forma Basis, immediately after giving effect to such Restricted Debt Payment, the use of proceeds thereof and all related pro forma adjustments, the Total Net Leverage Ratio, recomputed as of the last day of the most recent fiscal quarter for which financial statements are required to be delivered (or are actually delivered, if earlier) and for the Test Period ending on such date, is less than or equal to 1.50:1.00;
(vi) additional Restricted Debt Payments in an aggregate amount not to exceed $10 million; and
(vA) repayments onRestricted Debt Payments with Eligible Equity Proceeds, reductions ofto the extent such Eligible Equity Proceeds have not otherwise been applied to make any Investment, forgiveness Restricted Payment or Restricted Debt Payment hereunder and do not increase the Available Amount, (B) the conversion of all or the termination any portion of any Junior Financing into Qualified Equity Interests of the Parent Note so long asBorrower, in any case(C) to the extent constituting a Restricted Debt Payment , after giving effect payment-in-kind of interest with respect to any such repaymentJunior Financing that is permitted under Section 6.1, reduction, forgiveness or termination any other transactions and (D) Restricted Debt Payments as part of an “applicable high yield discount obligation” catch up payment with respect to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyIndebtedness permitted by Section 6.1.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) each of Holdings and the Borrower may declare and pay dividends with respect to its common stock, payable solely in additional shares of its common stock, and Holdings may declare and pay dividends with respect to its common or preferred stock stock, payable solely in additional shares of such preferred stock or in shares of its common or preferred stock, (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower may make distributions Restricted Payments to Holdings to permit Holdings to make payments pursuant to and in accordance with stock option plans or other benefit plans for payment management or employees of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or Borrower and the Subsidiaries in an aggregate amount not to exceed $7,500,000 during any fiscal year, (iv) Holdings may (A) redeem the Qualified Preferred Stock pursuant to a conversion into common stock of Holdings and (B) make any Restricted Payments in connection with such conversion, in each case, in accordance with the terms of the Qualified Preferred Stock (v) the Borrower may make Restricted Payments to Holdings at such times and in such amounts (A) not exceeding $3,000,000 during any fiscal year, as shall be necessary to permit Holdings to discharge its corporate overhead (including franchise taxes and directors fees) and other permitted liabilities and to make payments permitted by Section 6.09 and (B) as shall be necessary to pay any taxes that are due and payable by Holdings as part of a consolidated group that includes the Borrower, as to the case may be, and incurred primarily in connection with extent that such taxes relate to the business operations of the BorrowerBorrower and the Subsidiaries, (vi) so long as no Default shall have occurred and is be continuing or would occur as a result thereoftherefrom, Holdings may repurchase, redeem or retire its outstanding Equity Interests or make other Restricted Payments (iv) and the Borrower may make distributions Restricted Payments the proceeds of which are to be used by Holdings to effect such repurchases, redemptions or retirements or to redeem or repurchase Existing Senior Subordinated Notes or Senior Subordinated Notes) in an aggregate amount necessary not to enable Holdings exceed (A) in the event the Net Leverage Ratio on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available is greater than or equal to pay when due2.00 to 1.00, its actual federal, state and local income Taxes directly attributable to (or arising as a result ofx) $10,000,000 minus (y) the operations aggregate amount of Restricted Payments and payments relating to the Subordinated Debt previously made pursuant to this clause (vi), (B) in the event the Net Leverage Ratio on a Pro Forma Basis as of the Borrower, last day of the Manager most recently ended fiscal quarter of the Borrower for which financial statements are available is less than 2.00 to 1.00 and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated groupgreater than or equal to 1.50 to 1.00, (vx) [intentionally omitted], $25,000,000 minus (y) the aggregate amount of Restricted Payments and payments relating to the Subordinated Debt previously made pursuant to this clause (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends (C) in the Borrower; provided thatevent the Net Leverage Ratio on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available is less than 1.50 to 1.00, in each such case, Holdings actually (x) $40,000,000 minus (y) the aggregate amount of Restricted Payments and promptly uses such dividends for such investments, payments relating to the Subordinated Debt previously made pursuant to this clause (vi) and (vii) each Loan Party may purchaseso long as no Default shall have occurred and be continuing or would result therefrom, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs Holdings may make Restricted Payments to (and the holders of their Equity Interests so long as such Borrower may make Restricted Payments the proceeds of which are made on a pro rata basis used by Holdings to all make such holders payments) in accordance with their respective Equity Interests in such Permitted J/V.an aggregate amount not to exceed $2,000,000 during any fiscal year.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Debt or the Subordinated Promissory Note prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) [intentionally omitted]
(▇▇) ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and retirement of Subordinated Debt (including any premium (if any) and accrued and unpaid interest thereon to the date of such redemption, repurchase or retirement) with the Net Proceeds of any issuance of Equity Interests of Holdings during the period of four consecutive fiscal quarters ended immediately prior to the date of such redemption, repurchase or retirement (to the extent not previously applied to repurchase Subordinated Debt, to make Permitted Acquisitions, to make Capital Expenditures or to make investments under Section 6.04 (m)); and
(vvii) repayments onredemption, reductions ofrepurchase and retirement of Subordinated Debt (including any premium (if any) and accrued and unpaid interest thereon to the date of such redemption or repurchase), forgiveness at any time during any fiscal year in an aggregate amount equal to (A) $25,000,000, plus (B) Retained Excess Cash Flow for the previous fiscal year (to the extent such Retained Excess Cash Flow has not been applied previously to make Permitted Acquisitions, to repurchase Subordinated Debt or to make Capital Expenditures) plus (C) the amount of or the termination payments permitted to be made under Section 6.08(a)(vi).
(c) If, as a result of the Parent Note so long as, in receipt of any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from Net Proceeds by the Borrower or any Subsidiary in connection with any sale, transfer or other Loan Partydisposition pursuant to Section 6.05(c) or (g), the Borrower would be required by the terms of the Senior Subordinated Debt Documents or the terms of any Additional Senior Subordinated Notes to redeem or repurchase (or to make an offer to redeem or repurchase) any Existing Senior Subordinated Notes, Senior Subordinated Notes or Additional Senior Subordinated Notes, then the Borrower shall, or shall cause one or more of its Subsidiaries to, (i) prepay Term Loans in accordance with Section 2.11 as if such sale, transfer or disposition constituted a “Prepayment Event” or (ii) acquire real property, equipment or other tangible assets, in each case in a manner that will eliminate any requirement to redeem or repurchase (or to make an offer to redeem or repurchase) such Existing Senior Subordinated Notes, Senior Subordinated Notes and Additional Senior Subordinated Notes. Any such prepayment or acquisition pursuant to this clause (c) shall be made prior to the first day on which the Borrower would be required to redeem or repurchase (or commence an offer to redeem or repurchase) Existing Senior Subordinated Notes, Senior Subordinated Notes or Additional Senior Subordinated Notes under the Senior Subordinated Debt Documents or the terms of any such Additional Senior Subordinated Notes, as applicable.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) each of Holdings and the Borrower may declare and pay dividends with respect to its common stock, payable solely in additional shares of its common stock, and Holdings may declare and pay dividends with respect to its common or preferred stock stock, payable solely in additional shares of such preferred stock or in shares of its common or preferred stock, (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower may make distributions Restricted Payments to Holdings to permit Holdings to make payments pursuant to and in accordance with stock option plans or other benefit plans for payment management or employees of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or Borrower and the Subsidiaries in an aggregate amount not to exceed $7,500,000 during any fiscal year, (iv) Holdings may (A) redeem the Qualified Preferred Stock pursuant to a conversion into common stock of Holdings and (B) make any Restricted Payments in connection with such conversion, in each case, in accordance with the terms of the Qualified Preferred Stock (v) the Borrower may make Restricted Payments to Holdings at such times and in such amounts (A) not exceeding $3,000,000 during any fiscal year, as shall be necessary to permit Holdings to discharge its corporate overhead (including franchise taxes and directors fees) and other permitted liabilities and to make payments permitted by Section 6.09 and (B) as shall be necessary to pay any taxes that are due and payable by Holdings as part of a consolidated group that includes the Borrower, as to the case may be, and incurred primarily in connection with extent that such taxes relate to the business operations of the BorrowerBorrower and the Subsidiaries, (vi) so long as no Default shall have occurred and is be continuing or would occur as a result thereoftherefrom, Holdings may repurchase, redeem or retire its outstanding Equity Interests or make other Restricted Payments (iv) and the Borrower may make distributions Restricted Payments the proceeds of which are to be used by Holdings to effect such repurchases, redemptions or retirements or to redeem or repurchase Existing Senior Subordinated Notes or Senior Subordinated Notes) in an aggregate amount necessary not to enable Holdings exceed (A) in the event the Net Leverage Ratio on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available is greater than or equal to pay when due2.00 to 1.00, its actual federal, state and local income Taxes directly attributable to (or arising as a result ofx) $10,000,000 minus (y) the operations aggregate amount of Restricted Payments and payments relating to the Subordinated Debt previously made pursuant to this clause (vi), (B) in the event the Net Leverage Ratio on a Pro Forma Basis as of the Borrower, last day of the Manager most recently ended fiscal quarter of the Borrower for which financial statements are available is less than 2.00 to 1.00 and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated groupgreater than or equal to 1.50 to 1.00, (vx) [intentionally omitted], $25,000,000 minus (y) the aggregate amount of Restricted Payments and payments relating to the Subordinated Debt previously made pursuant to this clause (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends (C) in the Borrower; provided thatevent the Net Leverage Ratio on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available is less than 1.50 to 1.00, in each such case, Holdings actually (x) $40,000,000 minus (y) the aggregate amount of Restricted Payments and promptly uses such dividends for such investments, payments relating to the Subordinated Debt previously made pursuant to this clause (vi) and (vii) each Loan Party may purchaseso long as no Default shall have occurred and be continuing or would result therefrom, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs Holdings may make Restricted Payments to (and the holders of their Equity Interests so long as such Borrower may make Restricted Payments the proceeds of which are made on a pro rata basis used by Holdings to all make such holders payments) in accordance with their respective Equity Interests in such Permitted J/V.an aggregate amount not to exceed $2,000,000 during any fiscal year.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Debt or the Subordinated Promissory Note prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) [intentionally omitted]
(vi) redemption, repurchase and retirement of ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ (if any) and accrued and unpaid interest thereon to the date of such redemption, repurchase or retirement) with the Net Proceeds of any issuance of Equity Interests of Holdings during the period of four consecutive fiscal quarters ended immediately prior to the date of such redemption, repurchase or retirement (to the extent not previously applied to repurchase Subordinated Debt, to make Permitted Acquisitions, to make Capital Expenditures or to make investments under Section 6.04 (m)); and
(vvii) repayments onredemption, reductions ofrepurchase and retirement of Subordinated Debt (including any premium (if any) and accrued and unpaid interest thereon to the date of such redemption or repurchase), forgiveness at any time during any fiscal year in an aggregate amount equal to (A) $25,000,000, plus (B) Retained Excess Cash Flow for the previous fiscal year (to the extent such Retained Excess Cash Flow has not been applied previously to make Permitted Acquisitions, to repurchase Subordinated Debt or to make Capital Expenditures) plus (C) the amount of or the termination payments permitted to be made under Section 6.08(a)(vi).
(c) If, as a result of the Parent Note so long as, in receipt of any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from Net Proceeds by the Borrower or any Subsidiary in connection with any sale, transfer or other Loan Partydisposition pursuant to Section 6.05(c) or (g), the Borrower would be required by the terms of the Senior Subordinated Debt Documents or the terms of any Additional Senior Subordinated Notes to redeem or repurchase (or to make an offer to redeem or repurchase) any Existing Senior Subordinated Notes, Senior Subordinated Notes or Additional Senior Subordinated Notes, then the Borrower shall, or shall cause one or more of its Subsidiaries to, (i) prepay Term Loans in accordance with Section 2.11 as if such sale, transfer or disposition constituted a "Prepayment Event" or (ii) acquire real property, equipment or other tangible assets, in each case in a manner that will eliminate any requirement to redeem or repurchase (or to make an offer to redeem or repurchase) such Existing Senior Subordinated Notes, Senior Subordinated Notes and Additional Senior Subordinated Notes. Any such prepayment or acquisition pursuant to this clause (c) shall be made prior to the first day on which the Borrower would be required to redeem or repurchase (or commence an offer to redeem or repurchase) Existing Senior Subordinated Notes, Senior Subordinated Notes or Additional Senior Subordinated Notes under the Senior Subordinated Debt Documents or the terms of any such Additional Senior Subordinated Notes, as applicable.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings each Borrower may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares of its common or preferred stockEquity Interests, (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends or other distributions ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir Equity Interests, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as there exists no Default shall have occurred or Event of Default, the Borrowers may make Restricted Payments, not exceeding $2,000,000 during any fiscal year, pursuant to and is continuing in accordance with Equity Interest option plans or would occur as a result thereofother benefit plans for management or employees of the Borrowers and their Subsidiaries, (iv) so long as there exists no Default or Event of Default and the Borrower Company is a "flow through" or "disregarded" entity for United States federal income tax purposes, the Company may pay dividends or make distributions to Holdings its members in an aggregate amount not greater than the amount necessary to enable Holdings for such members (or, if any such member is a "flow through" or "disregarded" entity for United States federal income tax purposes, the members of such member) to pay when due, its their actual state and United States federal, state and local income Taxes directly attributable to (or arising as a result of) tax liabilities in respect of income earned by the operations of the BorrowerBorrowers, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted]the Company shall be permitted to pay dividends and distributions; provided, that such dividends and distribution shall only be permitted if (1) there exists no Default or Event of Default, (vi2) Potbelly Franchising may declare the Fixed Charge Coverage Ratio for the Borrowers (after giving effect to such dividend and pay cash dividends distribution) would 120 not be less than 1.25 to Holdings 1 for the most recently completed twelve month period assuming that for purposes of calculating the Fixed Charge Coverage Ratio for such period (calculated on a pro forma basis in a manner acceptable to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses Administrative Agent) such dividends for and distributions occurred on the first day of such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Partyapplicable period, and (viii3) Permitted J/Vs may make Restricted Payments immediately after giving effect to the holders payment of their Equity Interests so long as any such Restricted Payments are made dividends and distributions and for the next succeeding twelve month period, Availability will not be less than $40,000,000 on a pro rata forma basis (calculated in a manner acceptable to the Administrative Agent and assuming all past due accounts payable of the Borrowers have been paid in full in cash at the time of such holders in accordance with their respective Equity Interests in payment and no accounts payable of the Borrowers are allowed to become past due during such Permitted J/V.twelve month period thereafter).
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.016.1;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments onor repurchases of Senior Notes after the occurrence of a Qualified Public Offering; provided, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, that (1) immediately after giving effect to any such repaymentrepayment or repurchase and for the next succeeding twelve month period, reductionAvailability will not be less than $40,000,000 on a pro forma basis (calculated in a manner acceptable to the Administrative Agent and assuming all past due accounts payable of the Borrowers have been paid in full in cash at the time of such payment and no accounts payable of the Borrowers are allowed to become past due during such twelve month period thereafter), forgiveness and (2) the Fixed Charge Coverage Ratio for the Borrowers (after giving effect to such repayment or termination any other transactions repurchase) would not be less than 1.25 to be consummated simultaneously therewith, there is no net cash outflow 1 for the most recently completed twelve month period assuming that for purposes of calculating the Fixed Charge Coverage Ratio for such period (calculated on a pro forma basis in a manner acceptable to Holdings from the Borrower Administrative Agent) such repayment or any other Loan Partyrepurchase occurred on the first day of such applicable period.
Appears in 1 contract
Sources: Credit Agreement (Stewart & Stevenson Funding Corp.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares Equity Interests of its common or preferred stock, Holdings;
(ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, their capital stock;
(iii) the Parent Borrower may make distributions payments to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may beto permit it to make, and incurred primarily Holdings may make, Restricted Payments, not exceeding $2,000,000 during any fiscal year (provided that such amount shall be increased, in connection with the business respect of the Borrowerfiscal year ending on December 31, so long 2002, and each fiscal year thereafter by an amount equal to the total unused amount of such Restricted Payments for the immediately preceding fiscal year (without giving effect to the amount of any unused amounts that were carried forward to such preceding fiscal year) not to exceed in the aggregate $16,000,000), in each case pursuant to and in accordance with stock option plans, equity purchase programs or agreements or other benefit plans, in each case for management or employees or former employees of the Parent Borrower and the Subsidiaries;
(iv) the Parent Borrower may pay dividends to Holdings at such times and in such amounts (A) as shall be necessary to enable Holdings to make payments permitted by Section 6.08(a) (v) and (vi) and (B) as shall be necessary to permit Holdings to discharge its other permitted liabilities;
(v) Holdings may pay Holdings Preferred Dividends and interest in respect of the Shareholder Loans and its other Indebtedness permitted hereunder, provided that, at the time of such payment and after giving effect thereto, no Default or Event of Default shall have occurred and is be continuing or would occur as a result thereofand Holdings and the Parent Borrower are in compliance with Sections 6.13 and 6.14;
(vi) Holdings may make payments to the extent contemplated by the Recapitalization Agreement, including payments in respect of the restricted stock granted pursuant to the Restricted Stock Obligation, provided that, at the time of such payment in respect of the Restricted Stock Obligation and after giving effect thereto, no Event of Default shall have occurred and be continuing;
(ivvii) Holdings may pay the Saturn Proceeds Distribution;
(viii) Parent Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends payments to Holdings to permit it to make, and Holdings to invest such cash dividends in the Borrowermay make payments permitted by Sections 6.09(f), (g), (h) and (i); provided that, at the time of such payment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and Holdings and the Parent Borrower are in each compliance with Sections 6.13 and 6.14; provided, further, that any payments that are prohibited because of the immediately preceding proviso shall accrue and may be made as so accrued upon the curing or waiver of such caseDefault, Holdings actually and promptly uses such dividends for such investments, Event of Default or noncompliance; and
(viiix) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Intercompany Transfer.
(b) No Loan Party None of Holdings, the Parent Borrower, any Subsidiary Term Borrower or any Foreign Subsidiary Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) the repurchase, redemption, repayment or other retirement of the Convertible Debentures as permitted by Sections 5.15 and 6.12;
(iii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the subordinated Indebtedness prohibited by the subordination provisions thereof;
(iiiiv) refinancings of Indebtedness to the extent permitted by Section 6.01;; and
(ivv) payment of secured Indebtedness that becomes due as a result out of the voluntary proceeds of any sale or transfer of the property or assets securing such Indebtedness; and.
(vc) repayments onNone of Holdings, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyForeign Subsidiary Borrower will, nor will they permit any Subsidiary to, enter into or be party to, or make any payment under, any Synthetic Purchase Agreement unless (i) in the case of any Synthetic Purchase Agreement related to any Equity Interest of Holdings, the payments required to be made by Holdings are limited to amounts permitted to be paid under Section 6.08(a), (ii) in the case of any Synthetic Purchase Agreement related to any Restricted Indebtedness, the payments required to be made by Holdings, the Parent Borrower or the Subsidiaries thereunder are limited to the amount permitted under Section 6.08(b) and (iii) in the case of any Synthetic Purchase Agreement, the obligations of Holdings, the Parent Borrower and the Subsidiaries thereunder are subordinated to the Obligations on terms satisfactory to the Required Lenders.
Appears in 1 contract
Sources: Credit Agreement (Mascotech Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred capital stock, (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower Holdings may make distributions Restricted Payments, not exceeding $2,000,000 during any fiscal year, pursuant to Holdings and in accordance with stock option plans or other benefit plans for payment directors, management or employees of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager Borrower and the Subsidiaries, including the redemption or purchase of capital stock of Holdings held by former directors, management or employees of Holdings, the Borrower, as the case may be, and incurred primarily in connection with the business Borrower or any Subsidiary following termination of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereoftheir employment, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings at such times and in such amounts, not exceeding $2,000,000 during any fiscal year, as shall be necessary to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire discharge its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, permitted liabilities and (viiiv) Permitted J/Vs the Borrower and the Joint Venture Holding Companies may make Restricted Payments to Holdings at such times and in such amounts (but not prior to the holders fifth anniversary of their Equity Interests so long the date of issuance of the Cumulative Preferred Stock) as shall be necessary to enable Holdings, after such fifth anniversary, to pay dividends in cash on such Cumulative Preferred Stock as and when declared and payable, provided that, at the time of each Restricted Payment made in reliance upon this clause (v) and after giving pro forma effect to such payment, the Leverage Ratio shall not exceed 1.50 to 1.00, (vi) Holdings, the Borrower and the Subsidiaries may make Restricted Payments are made as and to the extent contemplated by the Recapitalization Agreement and (vii) Holdings may make Restricted Payments on account of the purchase, redemption or repurchase of the Cumulative Preferred Stock with the net proceeds of a pro rata basis substantially concurrent IPO, provided that, after giving effect to all such holders in accordance with their respective Equity Interests in such Permitted J/V.purchase, redemption or repurchase, no Default or Event of Default shall have occurred and be continuing.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than (A) payments in respect of the Subordinated Debt and the Junior Subordinated Note prohibited by the subordination provisions thereof, (B) principal payments in respect of the Junior Subordinated Note and (C) cash interest payments in respect of the Junior Subordinated Note unless, in the case of any such payment specified in this clause (C), at the time of such payment and after giving pro forma effect thereto the Leverage Ratio shall not exceed 1.50 to 1.00 and such payment is due and payable on or after the fifth anniversary of the date of issuance of the Junior Subordinated Note;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) payments on account of the redemption of the First Lien Notes or the Second Lien Notes or a combination thereof with not more than 25% of the aggregate net proceeds of one or more issuances of equity securities of Holdings, provided that (A) after giving effect to such redemption, no Default or Event of Default shall have occurred and be continuing, (B) not more than 35% of the original aggregate principal amount of the First Lien Notes or the Second Lien Notes is redeemed and (C) any such redemption shall be made within 90 days of such equity issuance and otherwise in compliance with the provisions of the First Lien Note Indenture or Second Lien Note Indenture, as applicable;
(vi) payments in respect of any Permitted Receivables Facility;
(vii) payments on account of the purchase, redemption or retirement of any First Lien Notes, Second Lien Notes or Subordinated Debt, provided that (A) after giving effect to such purchase, redemption or retirement, no Default shall have occurred and be continuing, (B) any such purchase, redemption or retirement shall be made during the Refinancing Period and otherwise in compliance with the provisions of the First Lien Note Indenture, Second Lien Note Indenture or the Subordinated Debt Documents, as applicable (it being understood and agreed that any First Lien Notes, Second Lien Notes or Subordinated Debt purchased, redeemed or retired pursuant to this clause (vii) shall immediately be canceled) and (C) in the case of any such payment to be made by the Borrower pursuant to this clause (vii) (other than a payment made with the Net Proceeds of a Specified Equity Offering (including the offering consummated on February 9, 2004) or Permitted Refinancing Indebtedness) on account of the purchase, redemption or retirement of any First Lien Notes, Second Lien Notes or Subordinated Debt (including payments in respect of redemption premiums or transaction fees or expenses), such payment shall be permitted only if, on a pro forma basis after giving effect thereto, the aggregate amount of cash and Permitted Investments owned by the Borrower and the Subsidiary Loan Parties (excluding any such cash and Permitted Investments that are subject to any Lien in favor of any Person other than the Collateral Agent for the benefit of the Secured Parties (it being understood that any such cash and Permitted Investments subject to a Lien in favor of the Collateral Agent to secure the Obligations shall not be excluded by virtue of being subject to Liens under the First Lien Documents and Second Lien Documents) and excluding cash and Permitted Investments escrowed or otherwise segregated to redeem or repurchase Indebtedness) is not less than $150,000,000; and
(vviii) repayments on, reductions of, forgiveness of or the termination payments on account of the Parent purchase, redemption or retirement of all or a portion of the Junior Subordinated Note so long aswith the Net Proceeds of any Permitted Junior Subordinated Note Refinancing Indebtedness or Specified Junior Subordinated Note Offering, or an exchange of Equity Interests issued by Holdings, in any casecompliance with the other applicable provisions of this Agreement, after giving effect to any for all or a portion of the Junior Subordinated Note; provided that the Junior Subordinated Note (or such repayment, reduction, forgiveness or termination any other transactions to portion) shall be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Partyretired and canceled.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any domestic Subsidiary to, to declare or makepay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, or agree to pay make any payment on account of, or makeset apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Equity Interests of any Loan Party or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of any Loan Party or any Subsidiary (collectively, “Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments”), except that:
(i) Holdings may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common or preferred stock, (iia) any domestic Subsidiary may make Restricted Payments to the Borrower, Borrower or any wholly owned Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, Guarantor; and
(iiib) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default or Event of Default shall have occurred and is continuing or would occur as a result thereofbe continuing, (iv) the Borrower may make distributions to Holdings purchase its common stock or common stock options from present or former officers or employees of any Loan Party or any Subsidiary upon the death, disability or termination of employment of such officer or employee, provided, that the aggregate amount of payments under this clause (b) after the date hereof (net of any proceeds received by the Borrower after the date hereof in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (connection with resales of any common stock or arising as a result ofcommon stock options so purchased) the operations shall not exceed $250,000 in any fiscal year of the Borrower, ;
(c) so long as Administrative Agent has not (i) terminated the Manager and their Subsidiaries that are Commitments or (ii) declared all of the obligations hereunder immediately due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided thatpayable, in each such case, Holdings actually and promptly uses such dividends for such investmentspursuant to Article VII hereof or otherwise, (vii) each Loan Party the Borrower may purchase, redeem or otherwise acquire its common or preferred Equity Interests pay a dividend in connection with the IPO, provided that such dividend is payable solely with proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such IndebtednessIPO; and
(vd) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long asas no Event of Default exists or would result therefrom, in any caseand so long as Borrower remains a limited liability company, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower may pay dividends or any other Loan Partymake distributions to its members in an aggregate amount not greater than the amount necessary for such members to pay their actual state and United States federal income tax liabilities solely in respect of income earned by the Borrower.
Appears in 1 contract
Sources: Credit Agreement (Superior Offshore International Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) the Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (ii) Holdings may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares of its common or preferred stockQualified Equity Interests, (iiiii) any Subsidiary Holdings may and the Borrower may, or may make Restricted Payments to Holdings so that Holdings may, make Restricted Payments, not exceeding $3,000,000 (excluding salaries and bonuses) during any fiscal year, (x) pursuant to and in accordance with stock option plans or other benefit plans approved by the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings ’s board of directors for payment management or employees of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager Borrower and the Subsidiaries and (y) to current or the Borrower, as the case may be, and incurred primarily in connection with the business former employees or directors on account of the Borrower, so long as no Default shall have occurred and is continuing purchases or would occur as a result thereofredemptions of stock of Holdings held by such Person, (iv) the Borrower may make distributions Restricted Payments to Holdings at such times and in an amount such amounts (A) as shall be necessary to enable permit Holdings to discharge its general corporate and overhead expenses (including franchise taxes and directors fees) incurred in the ordinary course and other permitted liabilities, (B) to pay when due, its actual federal, state and local income Taxes the Tax liabilities directly attributable to (or arising as a result of) the operations of the BorrowerBorrower and the Subsidiaries; provided, however, that (1) the Manager amount of Restricted Payments pursuant to clause (B) of this clause (iv) shall not exceed the amount that the Borrower and their the Subsidiaries that 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, (2) all Restricted Payments made to Holdings pursuant to this clause (iv) are due and payable used by Holdings as for the parent of a consolidated grouppurposes specified herein within five Business Days after Holdings’ receipt thereof, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs Borrower may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis extent necessary to all such holders in accordance with their respective Equity Interests in such Permitted J/V.
(b) No Loan Party will, nor will it permit any Subsidiary to, Holdings to make payments to the Sponsor or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) Sponsor Affiliates of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination reimbursement of any Indebtedness, except:
(i) reasonable costs and expenses and payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness monitoring or management or similar fees to the extent permitted by Section 6.01;
6.09, provided that no Default shall have occurred and be continuing or would result therefrom and (ivvi) payment of secured Indebtedness Holdings may and the Borrower may, or may make Restricted Payments to Holdings so that becomes due as a result Holdings may, make Restricted Payments, not exceeding $6,000,000 in the aggregate in connection with the exercise of the voluntary sale Seller Put Option, pursuant to the Acquisition Agreement as amended through and including the Effective Date, provided that no Default or transfer Event of the property Default shall have occurred and be continuing or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness would result therefrom. Notwithstanding any other provision of or the termination of the Parent Note so long asthis Agreement, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the event that the Borrower or any other Loan Party.Subsidiary makes any investment in Holdings pursuant to
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings may declare and pay dividends make Restricted Payments with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, ;
(ii) any Subsidiary Holdings may make Restricted Payments with respect to the Holdings Preferred Stock payable solely in additional shares of the Holdings Preferred Stock;
(iii) Subsidiaries of the Borrower may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party Borrower and to wholly owned Subsidiaries and may declare and pay dividends ratably with respect to their common stock;
(iv) Holdings may make Restricted Payments Payments, not exceeding $2,000,000 during any fiscal year, pursuant to any and in accordance with stock option plans or other Subsidiary that is a Loan Partybenefit plans for management or employees of Holdings and its Subsidiaries, and including the redemption or purchase of shares of common stock of Holdings held by former employees of Holdings or any Subsidiary following the termination of their employment; provided, however, that is not a Loan Party may make the amount of Restricted Payments permitted under this clause (iv) in any fiscal year shall be increased (but not by more than $10,000,000) on a cumulative basis by an amount equal to the total unused amount of permitted Restricted Payments under this clause (iv) for the preceding year;
(v) following the fifth anniversary of the Effective Date, if at the time thereof and after giving effect thereto no Default has occurred and is continuing, the Borrower may pay interest to Holdings at such times and in such amounts, not exceeding $18,637,500 during any fiscal year, as shall be necessary to permit Holdings to pay, as and when due, interest on the Holdings Senior Discount Debentures accrued subsequent to the fifth anniversary of the Effective Date;
(vi) if at the time thereof and after giving effect thereto no Default has occurred and is continuing, Holdings may redeem, purchase, retire or otherwise acquire outstanding shares of Holdings Preferred Stock with the Net Proceeds from the issuance after the Effective Date of new preferred stock of Holdings or the issuance after the Effective Date of common stock of Holdings issued in a Rule 144A or other Subsidiaryprivate placement;
(vii) if at the time thereof and after giving effect thereto no Default has occurred and is continuing, the Borrower may pay cash dividends to Holdings, in an aggregate amount not exceeding $1,500,000 during any fiscal year, at such times and in such amounts as shall be necessary to permit Holdings to (iiiA) pay taxes imposed upon it and liabilities incidental to its existence when due and (B) pay directors' fees and management compensation to its directors when due; provided that any dividends permitted to be paid to Holdings shall not be paid prior to the date that Holdings will apply the proceeds of such dividends to the purposes for which such dividends are permitted;
(viii) the Borrower may pay a one time management fee to TPG Partners in amount not exceeding $5,500,000;
(ix) the Borrower may make distributions payments to Holdings for payment of reasonable out-of-pocket operating pursuant to and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection accordance with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, Tax Sharing Agreement;
(ivx) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings in such amounts and at such times as Holdings makes Restricted Payments permitted by clause (iv) above and clause (xi) below; and
(xi) at any time after May 1, 1999 if at the time thereof no Default has occurred and is continuing and if the Leverage Ratio of the Borrower is less than 4.00 to permit Holdings to invest such cash dividends in 1.00 for the Borrower; provided that, in each such casetwo immediately preceding consecutive fiscal quarters, Holdings actually and promptly uses such dividends for such investmentsmay redeem, (vii) each Loan Party may purchase, redeem retire or otherwise acquire its common or preferred Equity Interests with outstanding shares of Holdings Preferred Stock in an aggregate amount not exceeding 50% of the proceeds received Net Proceeds from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation equity securities of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Holdings.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, cash securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings refinancing of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) payment of interest on the Holdings Senior Discount Debentures payable solely by the issuance of additional Holdings Senior Discount Debentures, provided that after the fifth anniversary of the Effective Date, Holdings will be permitted to pay interest in cash on (A) the Holdings Senior Discount Debentures as and when due and (B) any additional debt securities permitted under the proviso in Section 6.01(b);
(vi) repayment of the Indebtedness under Existing Credit Agreement on the Effective Date;
(vii) payment of unsecured Indebtedness permitted under clause (viii) of Section 6.01(a);
(viii) if at the time thereof and after giving effect thereto no Default has occurred and is continuing and if Popular Club or C & W shall have been sold, Holdings may redeem, purchase, retire or otherwise acquire outstanding Holdings Senior Discount Debentures in an aggregate amount not exceeding the lesser of 20% of the Net Proceeds from such sales or $25,000,000; and
(vix) repayments on, reductions of, forgiveness payment of or Obligations required under the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyQualified Transaction Documents.
Appears in 1 contract
Sources: Credit Agreement (J Crew Group Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any of the Subsidiary Loan Parties to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except, to the extent that no Default has occurred and is continuing or would result therefrom (other than any Restricted Payment permitted under (iv) below to consummate the Public Tender Offer, with respect to which the condition of the absence of a Default shall not apply):
(i) Holdings the Borrower may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares Equity Interests of its common or preferred stock, the same class;
(ii) any Subsidiary Loan Parties may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, their Equity Interests;
(iii) the Borrower may make distributions Restricted Payments, not exceeding $500,000 during any fiscal year, pursuant to Holdings and in accordance with stock option plans or other benefit plans for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager management or the Borrower, as the case may be, and incurred primarily in connection with the business employees of the Borrower, so long as no Default shall have occurred Borrower and is continuing or would occur as a result thereof, its Subsidiaries; and
(iv) the Borrower may make distributions to Holdings Restricted Payments in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (cash consisting of repurchases or arising as a result of) the operations redemptions of shares of the Borrower's common stock (including the Public Tender Offer and the Private Repurchase) in an aggregate amount on and after the Effective Date, determined at the Manager time of each such Restricted Payment, not to exceed: (a) $200,000,000 if the Total Leverage Ratio, measured prior to giving effect to such Restricted Payment and their Subsidiaries that are due any Indebtedness incurred to finance such Restricted Payment, or the Pro Forma Total Leverage Ratio, measured after giving effect to such Restricted Payment and payable by Holdings as the parent of a consolidated groupany Indebtedness incurred to finance such Restricted Payment, is greater than or equal to 6.50 to 1.00, (vb) [intentionally omitted]$300,000,000 if the Total Leverage Ratio, (vi) Potbelly Franchising may declare measured prior to giving effect to such Restricted Payment and pay cash dividends any Indebtedness incurred to Holdings finance such Restricted Payment, and the Pro Forma Total Leverage Ratio, measured after giving effect to permit Holdings such Restricted Payment and any Indebtedness incurred to invest finance such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem Restricted Payment is less than 6.50 to 1.00 but greater than or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed equal to any Loan Party4.50 to 1.00, and (viiic) Permitted J/Vs may make Restricted Payments an unlimited amount, if the Total Leverage Ratio, measured prior to the holders of their Equity Interests so long as giving effect to such Restricted Payments are made on a pro rata basis Payment and any Indebtedness incurred to all finance such holders in accordance with their respective Equity Interests in Restricted Payment, or the Pro Forma Total Leverage Ratio, measured after giving effect to such Permitted J/V.Restricted Payment and any Indebtedness incurred to finance such Restricted Payment is less than 4.50 to 1.00.
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary Loan Party to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment or prepayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness permitted by Section 6.01;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;; and
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Party.
Appears in 1 contract
Sources: Credit Agreement (Cumulus Media Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) the Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests;
(ii) Holdings may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares of its common Qualified Equity Interests;
(iii) the Borrower may, or preferred stock, (ii) any Subsidiary may make Restricted Payments to Holdings and Holdings may, make Restricted Payments, not exceeding, taken together with the aggregate principal amount of all Indebtedness incurred under Section 6.01(a)(xiv) during such fiscal year, $5,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans approved by the Borrower’s board of directors for former or current management, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Partydirectors, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment Franchisees or employees of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager Borrower or the Borrower, as the case may be, and incurred primarily in connection with the business any of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, Subsidiaries;
(iv) the Borrower may make distributions Restricted Payments to Holdings at such times and in an amount such amounts (A) not exceeding $5,000,000 during any fiscal year, as shall be necessary to enable permit Holdings to discharge its general corporate and overhead (including franchise taxes and directors fees and, following the completion of an IPO, costs and expenses necessary for or incidental to Holdings’s continued existence as a public company) expenses incurred in the ordinary course and other permitted liabilities and (B) as shall be necessary to pay when due, its actual federal, state and local income Taxes the Tax liabilities of Holdings directly attributable to (or arising as a result of) the operations of the BorrowerBorrower and the Subsidiaries, provided, however, that (1) the Manager amount of Restricted Payments pursuant to clause (B) of this clause (iv) shall not exceed the amount that the Borrower and their the Subsidiaries that 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 (2) all Restricted Payments made to Holdings pursuant to this clause (iv) are due and payable used by Holdings as for the parent of a consolidated group, purposes specified herein within five Business Days after Holdings’s receipt thereof;
(v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs Borrower may make Restricted Payments to the holders extent necessary to permit Holdings to make payments of their or on account of (A) management, consulting, investment banking and advisory fees and (B) reimbursement of out-of-pocket costs and expenses incurred in connection with management, consulting, investment banking and advisory services, in each case to the Sponsors or Sponsor Affiliates to the extent permitted by Section 6.09, provided that no Default shall have occurred and be continuing or would result therefrom;
(vi) on or after (A) July 1, 2007, the Borrower may declare and pay dividends and distributions to Holdings, and Holdings may declare and pay dividends and distributions with respect to, or otherwise repurchase, redeem or retire, its Equity Interests, up to an amount, taken together with the aggregate amount of Investments made under Section 6.04(q), equal to 50% of Excess Cash Flow from and after July 1, 2005, through the end of the most-recently ended fiscal year of the Borrower prior to the date of such dividend, distribution, repurchase, redemption or retirement for which financial statements have been delivered pursuant to Section 5.01(a), provided that (x) at the time of any such dividend, distribution, repurchase, redemption or retirement, no Default shall have occurred and be continuing or would result therefrom, (y) at the time of such dividend, distribution, repurchase, redemption or retirement and after giving effect thereto and to any borrowing in connection therewith, the Leverage Ratio on a Pro Forma Basis as of the last day of the most-recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b) is less than 3.00 to 1.00 and (z) in the case of any such Restricted Payment in an amount in excess of $15,000,000, the Borrower has delivered to the Administrative Agent a certificate of a Financial Officer, together with all relevant financial information reasonably requested by the Administrative Agent, demonstrating the calculation of such Excess Cash Flow or (B) the completion of an IPO, the Borrower may declare and pay dividends and distributions to Holdings, and Holdings may declare and pay dividends and distributions with respect to, or otherwise repurchase, redeem or retire, its common share Equity Interests, up to an amount, taken together with the aggregate amount of Investments made under Section 6.04(q), equal to the greater of (x) 50% of Excess Cash Flow from and after July 1, 2005, through the end of the most-recently ended fiscal year of the Borrower prior to the date of such dividend, distribution, repurchase, redemption or retirement for which financial statements have been delivered pursuant to Section 5.01(a), and (y) the sum of (1) $50,000,000, (2) 50% of Consolidated Net Income of Holdings during the period from and after December 31, 2005, to the end of the most-recently ended fiscal quarter of Holdings prior to the date of such dividend or distribution for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit) and (3) the aggregate amount of proceeds received by Holdings as a result of the issuance of Qualified Equity Interests so long as (other than such Restricted Payments are made on a pro rata basis to all such holders proceeds used in accordance with their respective Section 6.08(vii)), provided that (x) at the time of such dividend, no Default shall have occurred and be continuing or would result therefrom and (y) at the time of such dividend and after giving effect thereto, the Borrower complies, on a Pro Forma Basis, with the covenants set out in Sections 6.12 and 6.13;
(vii) concurrently with any issuance of Qualified Equity Interests, Holdings may redeem, purchase or retire any Equity Interests of Holdings using the proceeds of, or convert or exchange any Equity Interests of Holdings for, such Qualified Equity Interests;
(viii) the Borrower may make Restricted Payments to Holdings in such amounts as shall be necessary to pay out-of-pocket legal, accounting and filing fees, costs and expenses incurred in connection with a proposed initial public offering of Qualified Equity Interests of Holdings, provided that no Default shall have occurred and be continuing or would result therefrom;
(ix) the Borrower may make Restricted Payments to Holdings in such amounts as are necessary to repay in full on the Effective Date the PIK Notes;
(x) the Borrower or Holdings may make up to $5,000,000 of Restricted Payments on, or within 15 days of, the Effective Date to finance the return of capital and accrued interest to participants in the Investment Deferred Compensation Plan of the Borrower and Holdings;
(xi) the Borrower may make Restricted Payments to Holdings in an amount necessary to enable Holdings to make required payments in respect of Disqualified Equity Interests or Subordinated Debt issued by Holdings, provided that (i) such payments are permitted (x) in the case of Disqualified Equity Interests, by another clause of this Section 6.08 or (y) in the case of Subordinated Debt, by paragraph (b) of this Section 6.08 and (ii) Holdings promptly applies such proceeds in the manner required by such Disqualified Equity Interests or Subordinated Debt;
(xii) the Borrower or any Subsidiary may acquire, redeem or retire any Equity Interests of any other Subsidiary provided that such acquisition, redemption or retirement is permitted pursuant to Sections 6.03 and 6.04;
(xiii) notwithstanding any other provision of this Section 6.08 and Section 6.09, with the proceeds of the Tranche B-1 Term Loans funded by the Tranche B-1 Lenders (and not converted) (other than that portion of the Tranche B-1 Term Loans used to prepay the Original Tranche B Term Loans on the Restatement Effective Date) and the Cash Amount, (A) the Borrower may declare and pay a dividend to Holdings, (B) Holdings may declare and pay a dividend with respect to common share Equity Interests in Holdings and (C) the Borrower or Holdings may make payments to holders of options to acquire common share Equity Interests in Holdings and holders of restricted share unit awards issued by Holdings, provided that the aggregate amount of dividends and payments made by each of the Borrower and Holdings under this paragraph (xiii) shall not exceed $400,000,000, provided further that (x) at the time of such Permitted J/V.dividend or payment, no Default shall have occurred and be continuing or would result therefrom and (y) at the time of such dividend or payment and after giving effect thereto, the Borrower complies, on a Pro Forma Basis, with the covenants set out in Sections 6.12 and 6.13; and
(xiv) substantially concurrently with an IPO, and in any event, no later than 30 Business Days following the issue or transfer of Equity Interests pursuant to such IPO, the Borrower may make Restricted Payments to Holdings to the extent necessary to permit Holdings to make the payment of the fees permitted to be paid pursuant to Section 6.09(ix)(B), provided that (A) no Default shall have occurred and be continuing or would result therefrom and (B) at the time of such payment and after giving effect thereto, the Borrower complies, on a Pro Forma Basis, with the covenants set out in Sections 6.12 and 6.13.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectlyindirectly (other than agreeing to customary provisions in respect of repayment and repurchase upon asset sales in any Subordinated Debt Documents), any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any IndebtednessSubordinated Debt, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any IndebtednessSubordinated Debt, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as as, in the form of payment and when due in respect of any IndebtednessSubordinated Debt, payments due upon a change of control under any Subordinated Debt or upon acceleration of the maturity of any Subordinated Debt, in each case other than payments in respect of Subordinated Debt prohibited by the subordination provisions thereof;
(iiiii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(viii) repayments payment or other distribution in respect of principal or interest on, reductions or payment or other distribution on account of the purchase, redemption, retirement, acquisition, cancelation or termination of, forgiveness of any Subordinated Debt, in each case exchange for, or the termination out of the Parent Note so long asNet Proceeds of, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Partysubstantially concurrent sale of Qualified Equity Interests of Holdings.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Prior to the Investment Grade Date, neither Limited nor the Borrower will, nor will it they permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings Limited may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary Restricted Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) Limited may make Restricted Payments pursuant to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any and in accordance with stock option plans or other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) benefit plans for management or employees of the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereofits Subsidiaries, (iv) the Borrower may make distributions pay dividends to Holdings Limited at such times and in an amount such amounts as shall be necessary to enable Holdings permit Limited to pay when duedischarge its permitted liabilities, its actual federalprovided that if a Default or Event of Default shall have -------- occurred and be continuing no such dividends may be paid the proceeds of which are used to make any payment in respect of any Guarantee or any Indebtedness of Limited, state and local income Taxes directly attributable to (or arising v) Restricted Payments may be made in respect of the Preferred Stock as required thereunder so long as no Default would exist as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest making such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.payments.
(b) No Loan Party Prior to the Investment Grade Date, neither Limited nor the Borrower will, nor will it they permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan DocumentsDocuments or the Senior Notes;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
, other than payments in respect of subordinated Indebtedness prohibited by the subordination provisions thereof; (iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Party.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except:
(i) Holdings Subsidiaries of the Borrower may declare and pay dividends ratably (or in a manner more favorable to the Borrower or Subsidiaries) with respect to its common or preferred stock payable solely in additional shares of its common or preferred their capital stock, ;
(ii) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management, employees, directors or consultants (including former employees, directors or consultants) of any Parent, Holdings, the Borrower and its Subsidiaries; provided that the amount thereof does not exceed $1,000,000 in any calendar year;
(iii) the Borrower may pay dividends to Holdings at any time in such amounts as may be necessary to permit Holdings or a Parent to pay its expenses and liabilities incurred in the ordinary course (other than payments in respect of Indebtedness or Restricted Payments), including (A) payment of franchise taxes and other fees required to maintain its corporate existence and (B) to the extent deducted from net income in calculating Consolidated Net Income, to pay for general corporate and overhead expenses (including salaries and other compensation of employees) which are attributable or allocable to the ownership and operations of the Borrower and the Subsidiaries;
(iv) provided no Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments to Holdings with Eligible Equity Proceeds that have not been applied to any other Eligible Equity Proceeds Uses; provided that such Restricted Payments are made not later than 90 days after the receipt of such Eligible Equity Proceeds by the Borrower;
(v) noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; and
(vi) the Borrower or any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is Holdings (i) in amounts required for Holdings or a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings Parent to pay when due, its actual federal, state and local income Taxes imposed directly on Holdings or a Parent to the extent such Taxes are attributable to (or arising as a result of) the operations income of the BorrowerBorrower and its Subsidiaries (including, without limitation, by virtue of Holdings or a Parent being the Manager and their Subsidiaries that are due and payable by Holdings as the common parent of a consolidated groupor combined Tax group of which the Borrower and/or its Subsidiaries are members); provided, however, that the amount of any such dividends or distributions (plus any taxes payable directly by the Borrower and its Subsidiaries) shall not exceed the amount of such taxes that would have been payable directly by the Borrower and/or its Subsidiaries had the Borrower been the common parent of a separate tax group that included only the Borrower and its Subsidiaries, (vii) [intentionally omitted], (vi) Potbelly Franchising may declare and in amounts equal to the amounts required for Holdings or a Parent to pay cash dividends fees required to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire maintain its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, legal existence and (viiiiii) Permitted J/Vs may make Restricted Payments to the holders pay any reasonable fees or expenses related to unsuccessful debt or equity offerings of their Equity Interests so long as such Restricted Payments are made on Holdings or a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Parent.
(b) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Senior Subordinated Debt, Permitted Subordinated Indebtedness or other subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) repurchases, repayments, defeasance or other retirement of the Senior Subordinated Notes made with Eligible Equity Proceeds that have not been applied to any other Eligible Equity Proceeds Uses, provided such repurchase or repayment is made within 90 days after receipt of such Eligible Equity Proceeds by the Borrower; and provided that this Section 6.08(b) shall not prohibit cancellation of Indebtedness of the Borrower owing to Holdings in consideration for the issuance of additional common equity of the Borrower to Holdings; and
(vvi) repayments onpayments in the ordinary course of business of principal or interest on any Indebtedness between or among the Borrower and any of its Subsidiaries, reductions of, forgiveness provided that such payments are not otherwise prohibited by the terms of or the termination any of the Parent Note so long asLoan Documents.
(c) The Borrower will not, in and will not permit any caseSubsidiary to, after giving effect furnish any funds to, make any Investment in, or provide other consideration to any other Person (including any Unrestricted Subsidiary) for purposes of enabling such repaymentPerson to, reductionor otherwise permit any such Person to, forgiveness make any Restricted Payment or termination any other transactions to payment, repurchase, repayment or distribution restricted by this Section or under Section 6.09 that could not be consummated simultaneously therewith, there is no net cash outflow to Holdings from made directly by the Borrower or any other Loan Partyin accordance with the provisions of this Section.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock, Holdings and the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management, employees or Associated Employees (including former employees and former Associated Employees) of Holdings, the Borrower and its Subsidiaries; provided that the amount thereof, taken together with any Subsidiary payments or transfers of cash, assets or debt securities pursuant to clause (f) of Section 6.09, do not exceed $10,000,000 in any fiscal year, provided no Event of Default is continuing or would result therefrom, the Borrower may pay dividends to Holdings (x) within the 30-day period prior to any payment date for interest on Permitted Holdings Debt and any Put Financing Indebtedness of Holdings (contingent or otherwise) in the amount of such interest payment and (y) at any time in such amounts as may be necessary to permit Holdings to pay its expenses and liabilities incurred in the ordinary course (other than payments in respect of Indebtedness or Restricted Payments), provided no Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments to the BorrowerHoldings, any Subsidiary that is a Loan Party may and Holdings may, in turn, make such Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarythe Parent, (iiiA) in an aggregate amount not to exceed $5,000,000 during any fiscal year of the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, (B) so long as the Pro Forma RP Coverage Ratio is not less than 1.05 to 1.00 and, if on the date of such Restricted Payment the Pro Forma Leverage Ratio is less than 5.00 to 1.00, in an aggregate amount not to exceed the Borrower's Portion of Excess Cash Flow for the immediately preceding fiscal year of the Borrower less the amount of any other Designated Excess Cash Expenditures made with such Borrower's Portion of Excess Cash Flow, Restricted Payments in amounts as shall be necessary to make Tax Payments to the extent not disallowed by Section 6.14; provided that all Restricted Payments made pursuant to this clause (vi) are used by the Parent or Holdings for the purpose specified in clause (vi) within 30 days of receipt thereof, provided that no Event of Default shall have occurred and is continuing or would occur as a result thereoftherefrom, (iv) the Borrower may make distributions pay dividends to Holdings, and Holdings may, in turn, pay such dividends to the Parent to enable RHD Corp. to (A) repurchase its common stock and (B) pay cash dividends on its common stock, in an aggregate amount necessary for the preceding clauses (A) and (B) during any fiscal year not to enable Holdings exceed, if the Leverage Ratio (determined on a pro forma basis after giving effect to pay when duesuch Restricted Payment) for the period of four consecutive fiscal quarters most recently ended on or prior to the date of such Restricted Payment is (w) greater than 4.00 to 1.0, its actual federal10% of Excess Cash Flow for the previous year, state (x) greater than 3.50 to 1.0 but less than or equal to 4.00 to 1.0, 20% of Excess Cash Flow for the previous year, (y) greater than 3.00 to 1.0 but less than or equal to 3.50 to 1.0, 30% of Excess Cash Flow for the previous year and local income Taxes directly attributable (z) less than 3.00 to (1.0, 50% of Excess Cash Flow for the previous year, provided that no Event of Default is continuing or arising as a would result of) the operations of the Borrowertherefrom, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising Borrower may declare and from time to time pay cash dividends to Holdings and Holdings may, in turn, use the proceeds thereof to permit Holdings to invest such pay cash dividends in to the Borrower; provided thatParent, in each such casecase in an amount not in excess of the East Allocable Share of regularly scheduled cash interest payable during the next period of 30 days on any Put Financing Indebtedness of Parent and any Qualifying Parent Indebtedness, Holdings actually and promptly uses provided, however, that (A) any such dividends for relating to any such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with cash interest payment must be paid not earlier than 30 days prior to the date when such cash interest is required to be paid by the Parent and the proceeds received from must (except to the substantially concurrent issuance extent prohibited by applicable subordination provisions) be applied by the Parent to the payment of new common or preferred Equity Interests or where such interest when due and (B) in the consideration is the cancellation case of Indebtedness owed Qualifying Parent Indebtedness, no payment of dividends may be made pursuant to any Loan Party, and this clause (viii) Permitted J/Vs may make Restricted Payments to in respect of the holders East Allocable Share of their Equity Interests so long as cash interest on such Restricted Payments are made Indebtedness other than Base QPI unless the Interest Coverage Ratio (determined on a pro rata forma basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to such dividend payment) for the period of four consecutive fiscal quarters most recently ended on or prior to the date of such dividend payment is not less than 1.75 to 1.00, (ix) the Borrower may from time to time pay cash dividends to Holdings and Holdings may, in turn, use the proceeds thereof to pay cash dividends to the Parent, in each case in an amount not in excess of the amount necessary to repurchase the Existing Parent Notes pursuant to the Change in Control Offers, and (x) provided that no Event of Default is continuing or would result therefrom, the Borrower may from time to time pay cash dividends to Holdings, and Holdings may, in turn, use the proceeds thereof to pay cash dividends to the Parent, in each case in an amount not in excess of the RHD Allocable Share of regularly scheduled cash interest payable during the next period of 30 days on the outstanding Indebtedness of RHD Corp., provided, however, that (A) any such repayment, reduction, forgiveness or termination dividends relating to any other transactions such cash interest payment must be paid not earlier than 30 days prior to the date when such cash interest is required to be consummated simultaneously therewithpaid by RHD Corp. and the proceeds must (except to the extent prohibited by applicable subordination provisions, there if any) be applied by RHD Corp. to the payment of such interest when due, (B) no payment of dividends may be made pursuant to this clause (x) in respect of the RHD Allocable Share of cash interest on such Indebtedness other than Base RHD Indebtedness unless the Interest Coverage Ratio (determined on a pro forma basis after giving effect to such dividend payment) for the period of four consecutive fiscal quarters most recently ended on or prior to the date of such dividend payment is no net cash outflow not less than 1.75 to Holdings from 1.00 and (C) at the Borrower or any time of the incurrence of such Indebtedness (other Loan Partythan Base RHD Indebtedness outstanding on the Restatement Effective Date), and after giving effect thereto, the RHD Leverage Ratio shall not have exceeded 7.25 to 1.00.
Appears in 1 contract
Sources: Credit Agreement (Donnelley R H Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willAllied Waste will not, nor will it permit any Subsidiary of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings Allied Waste may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred capital stock, (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock, (iii) Allied Waste may make Restricted Payments, not exceeding an aggregate amount of $25,000,000 during any fiscal year, pursuant to and in accordance with the stock option plans or other benefit plans or in connection with incentive or compensation arrangements for current or former management or employees of the Borrower and its Restricted Subsidiaries, (iv) the Borrower or any Restricted Subsidiary may declare and make dividend payments to Allied Waste solely to the extent necessary for Allied Waste to pay for taxes and to pay administrative expenses to conduct its business in accordance with Sections 5.01B(b) and 6.10B, (v) Allied Waste may declare and pay dividends in respect of the Sponsor Preferred Stock payable solely in additional shares of Sponsor Preferred Stock (or other capital stock, as provided therein) and (vi) Allied Waste and its Restricted Subsidiaries may make Restricted Payments to the Borrower, any Subsidiary extent required by the terms of its joint venture or similar agreements in effect on the date hereof and listed on Schedule 6.08A; provided that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Partyimmediately prior, and any Subsidiary that is not a Loan Party may make after giving effect to, such Restricted Payments to any other SubsidiaryPayment, (iii) the Borrower may make distributions to Holdings for payment no Senior Event of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.be continuing.
(b) No Loan Party will, Allied Waste will not nor will it permit any Subsidiary of its Restricted Subsidiaries to, make or agree to pay or make, directly or indirectly, create or otherwise cause or suffer to exist or become effective any payment encumbrance or restriction on the ability of any such Subsidiary to (1) pay any dividends or make any other distribution (whether in cash, securities or other property) of or in respect of principal of or interest distributions on any Indebtedness, its capital stock or any payment other ownership interest or other distribution (whether in cash, securities 2) make or other property), including repay any sinking fund loans or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness advances to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Party.the parent of such Subsidiary, except for:
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings the Borrower may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) Subsidiaries may declare and pay dividends ratably with respect to their capital stock, provided that no distribution referred to in this clause (ii) shall be permitted to be made by any Special Purpose Subsidiary may make Restricted Payments to the Borrower, if any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, Default or Event of Default shall have occurred and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarybe continuing or would result therefrom, (iii) the Borrower may make distributions to Holdings for payment if no Event of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have has occurred and is continuing or would occur as a result thereoftherefrom, the Borrower may make Restricted Payments, not exceeding $10,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (iv) if no Event of Default has occurred and is continuing or would result therefrom, (A) the Borrower may make distributions Restricted Payments to Holdings in an amount necessary to enable Holdings to pay fund, as and when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations payments of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay regularly scheduled cash dividends to on Existing Preferred Stock (and Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses may pay such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from of such Restricted Payments to it), provided no such Restricted Payment shall be made by the substantially concurrent issuance of new common or preferred Equity Interests or where Borrower more than 15 days prior to the consideration is the cancellation of Indebtedness owed to payment date for any Loan Party, such cash dividend on Existing Preferred Stock; and (viiiB) Permitted J/Vs the Borrower may make Restricted Payments to Holdings to fund, as and when due, payments in respect of taxes, audit fees, directors and officers insurance premiums and other administrative expenses incurred by Holdings (to the holders extent fairly allocable to the business of their Equity Interests so long the Borrower and the Subsidiaries rather than the business of the Unrestricted Subsidiaries) in an aggregate amount not to exceed $3,000,000 (or such higher amount as the Administrative Agent may agree) during any fiscal year of the Borrower, (v) if no Event of Default has occurred and is continuing or would result therefrom, the Borrower may make Restricted Payments to Holdings for the purpose of enabling Holdings to repurchase or redeem shares of Series A Preferred Stock or other Capital Stock of Holdings, and Holdings may use the proceeds of such Restricted Payments to effect repurchases or redemptions of Series A Preferred Stock or other Capital Stock of Holdings, provided that (A) immediately after giving effect to any such Restricted Payment and related repurchase or redemption, (x) Current Liquidity is not less than $100,000,000 and (y) Holdings, the Borrower and the Subsidiaries are made on a pro rata basis in Pro Forma Compliance with the Financial Covenants and (B) the amount of such Restricted Payments paid to all such holders Holdings for the purpose of repurchasing or redeeming Capital Stock other than the Series A Preferred Stock shall not in accordance with their respective Equity Interests any event exceed $25,000,000 in such Permitted J/V.the aggregate and (vi) if no Event of Default has occurred and is continuing or would result therefrom, the Borrower may make Restricted Payments to Holdings to fund, as and when due, payments of regularly scheduled interest and principal in respect of any Qualifying Subordinated Indebtedness incurred by Holdings that is permitted by Section 6.01(a), other than payments prohibited by the subordination provisions thereof.
(b) No Loan Party willHoldings and the Borrower will not, nor and will it not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness (including regularly scheduled rent payments in respect of any Capital Lease Obligations) permitted by
Section 6.01 (a), other than payments in respect of the subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.016.01(a);
(iv) payment of secured Indebtedness permitted by Section 6.01(a) that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) returns of deposits or advances in the ordinary course of business;
(vi) payments under Guarantees of obligations of Persons other than Holdings, the Borrower and the Subsidiaries that are permitted under Section 6.01; and
(vvii) repayments onrepurchases, reductions ofretirements, forgiveness redemptions or prepayments of Existing Subordinated Notes or the termination Senior Notes, provided that (x) no Event of the Parent Note so long asDefault has occurred and is continuing or would result therefrom, in any case, (y) after giving effect thereto, Holdings, the Borrower and the Subsidiaries are in Pro Forma Compliance with the Financial Covenants and (z) immediately after giving effect thereto (and to the payment of any such repayment, reduction, forgiveness or termination any other transactions amounts required to be consummated simultaneously paid in connection therewith), there Current Liquidity is no net cash outflow to Holdings from the Borrower or any other Loan Partynot less than $100,000,000.
Appears in 1 contract
Sources: Credit Agreement (Triton PCS Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary of its Core Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment, or incur any obligation unless:
(contingent or otherwisea) such Restricted Payment is a payment of interest on Subordinated Indebtedness that (1) is due and payable and (2) when made is permitted to do sobe made under the subordination terms contained in the instrument evidencing such Subordinated Indebtedness,
(b) such Restricted Payment is a payment of principal of Subordinated Indebtedness that (1) is due and payable, except (2) was counted as Fixed Charges at the time of the incurrence of such Subordinated Indebtedness pursuant to Section ------- 6.01 and (3) when made is permitted to be made under the subordination terms ---- contained in the instrument evidencing such Subordinated Indebtedness,
(c) at the time of and after giving effect to such Restricted Payment,
(i) Holdings may declare no Default shall have occurred and pay dividends with respect to its common be continuing or preferred stock payable solely in additional shares shall result from the making of its common or preferred stock, such Restricted Payment,
(ii) any Subsidiary may make Restricted Payments the Cash Flow to Fixed Charges Ratio for the Borrowerprevious four fiscal quarters of the Borrower is equal to or greater than 1.7 to 1.0, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, and
(iii) The projected Cash Flow to Fixed Charges Ratio (determined on a pro forma basis which is (A) consistent with the then applicable power marketing plan delivered pursuant to Section 4.01(j) or 5.14, as --------------- ---- applicable, or (B) if no such power marketing plan is available, consistent with projections prepared by the Borrower may make distributions to Holdings for payment in good faith based on assumptions consistent in all material respects with the relevant contracts and agreements, historical operations, and the Borrower's good faith projections of reasonable out-of-pocket future revenues and projections of operating and administrative costs maintenance expenses for the Borrower and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily its Core Subsidiaries in connection with the business light of the Borrowerthen existing or reasonably expected regulatory and market environments in the markets in which its assets is or will be operated and upon the assumption that there will be no early redemption or prepayments of Indebtedness other than early redemptions or prepayments occurring concurrently with such incurrence of Indebtedness) for each of the two following periods of four full fiscal quarters shall be equal to or greater than 1.7 to 1.0; provided further that, so long as no Default or Event of Default shall have occurred and is be continuing or would occur as a shall result thereoffrom the making of such Restricted Payment, (iv) this Section 6.05 shall not prohibit the redemption, repurchase, ------------ retirement, defeasance or other acquisition of any Subordinated Indebtedness of the Borrower may make distributions to Holdings or of any Equity Interests in an amount necessary to enable Holdings to pay when duethe Borrower in exchange for, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations out of the BorrowerNet Proceeds of the substantially concurrent sale (other than to a Subsidiary) of, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends Equity Interests in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Party.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to its common or preferred stock payable solely in additional shares of its common or preferred stocktheir Equity Interests, (ii) any Subsidiary provided no Default or Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments to the BorrowerParent, provided that (A) the proceeds of such Restricted Payments are used to repurchase, redeem, or otherwise acquire or retire for value Equity Interests in the Ultimate Parent held by any future, present or former directors, officers, members of management, employees or consultants of the Ultimate Parent or the Service Company or their respective estates, heirs, family members, spouses or former spouses pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement, (B) (x) any Restricted Payments used to effect such repurchases, redemptions, acquisitions or retirements are made not earlier than ten Business Days prior to the date when such Equity Interests are repurchased, redeemed, acquired or retired, if such repurchase, redemption, acquisition or retirement is made and (y) if such Restricted Payments are not used for such repurchase, redemption, acquisition or retirement, the proceeds therefrom shall be returned to the Borrower as a capital contribution within ten Business Days from the date such Restricted Payment was made, (C) the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any fiscal year pursuant to this clause (ii) (other than (1) any such Equity Interests repurchased, redeemed, acquired or retired in compensation for any taxes due or payable by the holder thereof, and (2) any such Equity Interests that are deemed repurchased, redeemed, acquired or retired by the Ultimate Parent in connection with the exercise of stock options or warrants by the holder thereof in connection with the payment of all or a portion of the exercise price of such options or warrant) will not exceed $1,000,000 per year and (D) such Equity Interests shall only be repurchased, redeemed, acquired or retired in connection with the death, resignation or retirement of, or settlement of a dispute with, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarysuch Person, (iii) Restricted Payments in amounts as shall be necessary to make Tax Payments; provided that all Restricted Payments made pursuant to this clause (iii) are used by the recipient for the purpose specified in this clause (iii) within 30 days of receipt thereof, (iv) provided no Default or Event of Default is continuing or would result therefrom, the Borrower may from time to time pay cash dividends or distributions to the Parent in an amount not in excess of the lesser of (x) the Ultimate Parent Annual Cash Interest Amount and (y) the regularly scheduled cash interest payable (taking into account the Ultimate Parent PIK Election made pursuant to Section 6.17(j)) on the Restructuring Notes (or any Additional Notes incurred to refinance such Restructuring Notes) during the next period of ten Business Days, provided, however, that (A) any such dividends or distributions relating to any such cash interest payment must be paid not earlier than ten Business Days prior to the date when such cash interest is required to be paid by the Ultimate Parent and the proceeds must (except to the extent prohibited by applicable subordination provisions) be applied by the Ultimate Parent, to the payment of such interest when due, (B) the Borrower and its Subsidiaries shall be in Pro Forma Compliance after giving effect to the payment of any such dividends or distributions pursuant to this clause (iv) and (C) in no event may the amount of any such dividend or distribution made pursuant to this clause (iv) relating to any such cash interest payment exceed 36% of the amount of such cash interest paid by the Ultimate Parent when due, (v) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, Restricted Payments as the case may be, and incurred primarily in connection with the business part of the Borrower, so long as no Default shall have occurred Shared Services Transactions and is continuing or would occur as a result thereof, (ivvi) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders Parent in an aggregate amount not to exceed $2,000,000 during any fiscal year of their Equity Interests so long as the Borrower, provided that (A) no Default or Event of Default is continuing or would result therefrom, (B) the aggregate amount of Restricted Payments made pursuant to this clause (vi) shall not exceed $5,000,000 over the term of this Agreement, (C) the Ultimate Parent shall apply such Restricted Payments are within 30 days of receipt thereof and only to fund general corporate expenses permitted hereunder and (D) no Restricted Payments made on pursuant to this clause (vi) shall be used to (x) effect the repurchase, or the making of any payments in respect, of Restructuring Notes or Additional Notes or (y) make any payment to or Investment in any Affiliate other than the Borrower or a pro rata basis to all Subsidiary of the Borrower (or any director, officer or employee of any such holders in accordance with their respective Equity Interests in such Permitted J/V.Affiliate).
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of subordinated Indebtedness to the extent prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) prepayment of Capital Lease Obligations in an aggregate cumulative amount from and after the Closing Date not exceeding $5,000,000;
(vi) payment of any Indebtedness owing to the Service Company arising pursuant to the Shared Services Transactions; and
(vvii) repayments on, reductions of, forgiveness payment of or the termination of the Parent Note so long as, in any case, after giving effect Indebtedness owing to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Subsidiary Loan Party.
(c) The Borrower will not, and will not permit any Subsidiary to, furnish any funds to, make any Investment in, or provide other consideration to any other Person for purposes of enabling such Person to, or otherwise permit any such Person to, make any Restricted Payment or other payment or distribution restricted by this Section that could not be made directly by the Borrower in accordance with the provisions of this Section.
(d) Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, the Loan Parties shall be permitted to make all distributions required to be made by the Loan Parties on or after the Closing Date (pursuant to the Reorganization Plan and the Confirmation Order).
Appears in 1 contract
Sources: Credit Agreement (Dex Media, Inc.)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) Subsidiaries of the Borrower may declare and pay dividends ratably with respect to their capital stock, (iii) Holdings and the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management, employees or Associated Employees (including former employees and former Associated Employees) of Holdings, the Borrower and its Subsidiaries; provided that the amount thereof, taken together with any Subsidiary payments or transfers of cash, assets or debt securities pursuant to clause (f) of Section 6.09, do not exceed $15,000,000 in any fiscal year, (iv) provided no Event of Default is continuing or would result therefrom, the Borrower may pay dividends to Holdings (x) within the 30-day period prior to any payment date for interest on Permitted Holdings Debt and any Put Financing Indebtedness of Holdings (contingent or otherwise) in the amount of such interest payment and (y) at any time in such amounts as may be necessary to permit Holdings to pay its expenses and liabilities incurred in the ordinary course (other than payments in respect of Indebtedness or Restricted Payments), (v) provided no Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments to the BorrowerHoldings, any Subsidiary that is a Loan Party may and Holdings may, in turn, make such Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarythe Parent, (iiiA) in an aggregate amount not to exceed $12,500,000 during any fiscal year of the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, (B) so long as the Pro Forma RP Coverage Ratio is not less than 1.05 to 1.00 and, if on the date of such Restricted Payment the Pro Forma Leverage Ratio is less than 5.00 to 1.00, in an aggregate amount not to exceed the Borrower's Portion of Excess Cash Flow for the immediately preceding fiscal year of the Borrower less the amount of any other Designated Excess Cash Expenditures made with such Borrower's Portion of Excess Cash Flow, (vi) Restricted Payments in amounts as shall be necessary to make Tax Payments to the extent not disallowed by Section 6.14; provided that all Restricted Payments made pursuant to this clause (vi) are used by the Parent or Holdings for the purpose specified in clause (vi) within 30 days of receipt thereof, (vii) provided that no Event of Default shall have occurred and is continuing or would occur as a result thereoftherefrom, (iv) the Borrower may make distributions pay dividends to Holdings, and Holdings may, in turn, pay such dividends to the Parent to enable RHD Corp. to (A) repurchase its common stock and (B) pay cash dividends on its common stock, in an aggregate amount necessary for the preceding clauses (A) and (B) during any fiscal year not to enable Holdings exceed, if the Leverage Ratio (determined on a pro forma basis after giving effect to pay when duesuch Restricted Payment) for the period of four consecutive fiscal quarters most recently ended on or prior to the date of such Restricted Payment is (w) greater than 4.00 to 1.0, its actual federal10% of Excess Cash Flow for the previous year, state (x) greater than 3.50 to 1.0 but less than or equal to 4.00 to 1.0, 20% of Excess Cash Flow for the previous year, (y) greater than 3.00 to 1.0 but less than or equal to 3.50 to 1.0, 30% of Excess Cash Flow for the previous year and local income Taxes directly attributable (z) less than 3.00 to 1.0, 50% of Excess Cash Flow for the previous year, (viii) provided that no Event of Default is continuing or arising as a would result of) the operations of the Borrowertherefrom, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising Borrower may declare and from time to time pay cash dividends to Holdings and Holdings may, in turn, use the proceeds thereof to permit Holdings to invest such pay cash dividends in to the Borrower; provided thatParent, in each such casecase in an amount not in excess of the regularly scheduled cash interest payable during the next period of 30 days on any Put Financing Indebtedness of Parent and any Qualifying Parent Indebtedness, Holdings actually and promptly uses provided, however, that (A) any such dividends relating to any such cash interest payment must be paid not earlier than 30 days prior to the date when such cash interest is required to be paid by the Parent and the proceeds must (except to the extent prohibited by applicable subordination provisions) be applied by the Parent to the payment of such interest when due and (B) in the case of Qualifying Parent Indebtedness, no payment of dividends may be made pursuant to this clause (viii) in respect of the cash interest on such Indebtedness other than Base QPI unless the Interest Coverage Ratio (determined on a pro forma basis after giving effect to such dividend payment) for the period of four consecutive fiscal quarters most recently ended on or prior to the date of such investmentsdividend payment is not less than 1.75 to 1.00, (viiix) the Borrower may from time to time pay cash dividends to Holdings and Holdings may, in turn, use the proceeds thereof to pay cash dividends to the Parent, in each Loan Party case in an amount not in excess of the amount necessary to repurchase the Existing Parent Notes pursuant to the Change in Control Offers, (x) provided that no Event of Default is continuing or would result therefrom, the Borrower may purchasefrom time to time pay cash dividends to Holdings and Holdings may, redeem in turn, use the proceeds thereof to pay cash dividends to the Parent, in each case in an amount not in excess of the RHD Allocable Share of regularly scheduled cash interest payable during the next period of 30 days on the outstanding Indebtedness of RHD Corp., provided, however, that (A) any such dividends relating to any such cash interest payment must be paid not earlier than 30 days prior to the date when such cash interest is required to be paid by RHD Corp. and the proceeds must (except to the extent prohibited by applicable subordination provisions, if any) be applied by RHD Corp. to the payment of such interest when due, (B) no payment of dividends may be made pursuant to this clause (x) in respect of the RHD Allocable Share of cash interest on such Indebtedness other than Base RHD Indebtedness unless the Interest Coverage Ratio (determined on a pro forma basis after giving effect to such dividend payment) for the period of four consecutive fiscal quarters most recently ended on or otherwise acquire its common prior to the date of such dividend payment is not less than 1.75 to 1.00 and (C) at the time of the incurrence of such Indebtedness (other than Base RHD Indebtedness outstanding on the Restatement Effective Date), and after giving effect thereto, the RHD Leverage Ratio shall not have exceeded 7.25 to 1.00, (xi) the Borrower may from time to time pay cash dividends to Holdings and Holdings may, in turn, use the proceeds thereof to pay cash dividends to the Parent, in each case in an amount not in excess of the proceeds of the Tranche B-1 Term Loans made on or preferred Equity Interests after the Restatement Effective Date, provided, however, that such proceeds must be applied to consummate the Parent Acquisition in accordance with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed Merger Agreement, to redeem Existing Notes pursuant to any Loan PartyChange in Control Offers and/or, in an amount not to exceed $50,000,000, for general corporate purposes, and (viiixii) Permitted J/Vs provided that no Event of Default is continuing or would result therefrom, the Borrower may make Restricted Payments from time to time pay cash dividends to Holdings and Holdings may, in turn, use the proceeds thereof to pay cash dividends to the holders Parent in an aggregate amount not to exceed $135,000,000; provided, however, that any such dividends are used solely to pay (A) cash interest on any Indebtedness of their Equity Interests so long as such Restricted RHD Corp., any Put Financing Indebtedness of Parent or any Qualifying Parent Indebtedness, (B) Shared Services Payments are made on a pro rata basis (notwithstanding the 30-day period payment requirement contained in Section 6.22(c) or referred to all such holders in accordance the definition thereof) or (C) fees and expenses in connection with their respective Equity Interests in such Permitted J/V.the Parent Acquisition.
(b) No Loan Party willThe Parent, Holdings and the Borrower will not, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness (including any Put Financing Indebtedness), other than payments in respect of the Senior Subordinated Debt, Permitted Subordinated Indebtedness, Qualifying Parent Indebtedness, Parent Non-Cash Pay Debt or other subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and;
(v) repayments onprepayment of Capital Lease Obligations in an aggregate cumulative amount from and after the Original Closing Date not exceeding $7,500,000;
(vi) Optional Repurchases of other Indebtedness involving cumulative expenditures in any fiscal year not in excess of an amount equal to the Borrower's Portion of Excess Cash Flow for the immediately preceding fiscal year less the amount of other Designated Excess Cash Expenditures made with such Borrower's Portion of Excess Cash Flow, reductions ofprovided, forgiveness however, that on the date of or each such Optional Repurchase the termination Pro Forma Leverage Ratio is less than 5.00 to 1.00;
(vii) Optional Repurchases of other Indebtedness involving expenditures in an amount not in excess of (x) that portion of the Parent Note so long asNet Proceeds (or Allocable Net Proceeds, as the case may be) from any Equity Issuance (or portion thereof) in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions respect of which the Required Percentage is 50% which is not required to be consummated simultaneously therewithapplied to the prepayment of Term Loans pursuant to Section 2.11(c) and (y) 50% of the Net Proceeds (or Allocable Net Proceeds, there as the case may be) from any Equity Issuance (or portion thereof) in respect of which the Required Percentage is no net cash outflow to Holdings 0%; provided, however, that (I) such Optional Repurchases are effected within 180 days of the receipt of the Net Proceeds (or Allocable Net Proceeds) from the Borrower or any other Loan Party.relevant Equity Issuance and
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Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except, (x) any Loan Party may make a Permitted Holdings Dividend and (y) so long as no Event of Default shall have occurred and be continuing or would result therefrom (including after giving effect thereto on a pro forma basis), (i) each of Holdings and the Borrowers may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common stock, and, with respect to its preferred stock, payable solely in additional shares of such preferred stock or preferred in shares of its common stock, (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other SubsidiaryBorrowers, (iii) the Borrower Loan Parties and their Subsidiaries may make distributions Restricted Payments payable solely in the form of their Equity Interests pursuant to Holdings and in accordance with employment agreements, bonus plans, stock option plans, or other benefit plans for payment of reasonable out-of-pocket operating existing, new and administrative costs former management, directors, employees and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business consultants of the BorrowerLoan Parties and their Subsidiaries, (iv) Holdings and its Subsidiaries may make any other Restricted Payment, so long as the aggregate amount of all such Restricted Payments made pursuant to this clause (iv) during any Fiscal Year does not exceed the sum of $5,000,000 plus the Cumulative Retained Excess Cash Flow Amount that is in effect immediately prior to the time of making of such Restricted Payment (provided that the use of the Cumulative Retained Excess Cash Flow Amount to make Restricted Payments shall be subject to (A) no Default shall have or Event of Default has occurred and is continuing or would occur be caused by the making of such Restricted Payment and (B) (x) both prior to and after giving effect to such Restricted Payment, the Senior Secured Leverage Ratio shall not exceed 3.25:1.00 as a result thereofof the last day of the most recent Fiscal Quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, as of the last Fiscal Quarter included in the financial statements referred to in Section 3.04(a)) and (ivy) the Borrower may make distributions Representative shall have delivered to Holdings in an amount necessary to enable Holdings to pay when duethe Administrative Agent a certificate of a Financial Officer of Holdings, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) setting forth reasonably detailed calculations demonstrating the operations satisfaction of the Borrower, the Manager condition appearing in clause (x) above) and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted]Holdings may enter into, (vi) Potbelly Franchising may declare exercise its rights and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided thatperform its obligations under, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Call Spread Swap Agreements.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness permitted under this Agreement, other than payments in respect of the Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) payment of intercompany Indebtedness incurred in accordance with Section 6.01;
(iv) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ivv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness so long as the proceeds of such sale are sufficient to repay such Indebtedness in full;
(vi) payments made in respect of the sinking fund requirement under the New Markets Tax Credit Financing, so long as (i) after giving effect to such payment, the aggregate amount of all such payments does not exceed the then outstanding principal amount of the Dairyland HP Indebtedness, and (ii) no Default or Event of Default has occurred and is continuing or would be caused by such payment;
(vii) prepayments or repayments with respect to the Dairyland HP Indebtedness, so long as no Default or Event of Default has occurred and is continuing or would be caused by such payment;
(viii) mandatory prepayments and voluntary repayments of Indebtedness under the ABL Facility to the extent not prohibited by the Intercreditor Agreement;
(ix) issuance of Equity Interests, or making cash payments (in the case of any cash payments in respect of Permitted Convertible Seller Notes, so long as no Default or Event of Default has occurred and is continuing or would be caused by such payment), in connection with or as part of the conversion, redemption, retirement, prepayment or cancellation of any Permitted Convertible Notes;
(x) payment of regularly scheduled interest payments in respect of Permitted Convertible Seller Notes permitted pursuant to clause (i) of Section 6.01(j) hereof, so long as no Default or Event of Default has occurred and is continuing or would be caused by such payment; and
(vxi) repayments onany other payments in respect of Subordinated Indebtedness, reductions of, forgiveness of or the termination of the Parent Note so long asas (i) the aggregate amount of all payments made pursuant to this clause (xi) does not exceed the Cumulative Retained Excess Cash Flow Amount that is in effect immediately prior to the time of making such payment, in any case, (ii) no Default or Event of Default has occurred and is continuing or would be caused by such payment and (iii) (x) both prior to and after giving effect to such payment, the Senior Secured Leverage Ratio shall not exceed 3.25:1.00 as of the last day of the most recent Fiscal Quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such repaymentfinancial statements, reduction, forgiveness or termination any other transactions as of the last Fiscal Quarter included in the financial statements referred to be consummated simultaneously therewith, there is no net cash outflow to Holdings from in Section 3.04(a)) and (y) the Borrower Representative shall have delivered to the Administrative Agent a certificate of a Financial Officer of Holdings, setting forth reasonably detailed calculations demonstrating the satisfaction of the condition appearing in clause (x) above; provided, however, that no such payment or distribution shall be made in respect of the ABL Obligations in violation of the Intercreditor Agreement or in respect of any other Subordinated Indebtedness in violation of the subordination provisions applicable thereto.
(c) No Loan PartyParty will, nor will it permit any Subsidiary to, make, directly or indirectly, any Specified Earn-Out Payment, unless no Default or Event of Default has occurred and is continuing or would be caused by such Specified Earn-Out Payment.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Parent Borrower will not, nor and will it not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings Wholly Owned Subsidiaries may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common or preferred stocktheir Equity Interests and Subsidiaries that are not Wholly Owned Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (ii) any Subsidiary may the Parent Borrower may, subject to Section 6.02, make Restricted Payments dividends with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiaryits Equity Interests consisting solely of additional Equity Interests permitted hereunder, (iii) the Parent Borrower may purchase the Parent Borrower’s Equity Interests from present or former officers or employees of the Parent Borrower or any Subsidiary upon the death, disability or termination of employment of such officer or employee in an aggregate amount for all payments under this clause (iii) not to exceed $1,000,000 per fiscal year of the Parent Borrower; provided, that any such amount not so expended in the fiscal year for which it is permitted may be carried over for expenditure in succeeding fiscal years, (iv) the Parent Borrower may make distributions to Holdings for a payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business settlement of the Borrowerclaims of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Capital, so long as L.L.C. in connection with the alleged “put” right of such parties with respect to certain capital stock and warrants issued by Old Pliant in an aggregate amount not to exceed the lesser of (A) the actual amount of such settlement and (B) $12,000,000 and (v) the Parent Borrower may redeem the Series AA Preferred Stock with proceeds of Permitted Redemption Indebtedness; provided that in each case, no Default shall have has occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.therefrom.
(b) No Loan Party willThe Parent Borrower will not, nor and will it not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any IndebtednessSenior First Lien Note, Senior Second Lien Note or Senior Subordinated Note, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any IndebtednessSenior First Lien Note, except:
Senior Second Lien Note or Senior Subordinated Note, except (i) payment of Indebtedness created under regularly scheduled interest payments as and when due in respect of the Loan Documents;
Senior First Lien Notes; provided that, (A) the Parent Borrower shall not be permitted to make cash interest payments in respect of the Senior First Lien Notes referred to in clause (a) of the definition thereof or the interest payable pursuant to the Supplemental First Lien Notes Indenture and (B) on and prior to June 15, 2007, the Parent Borrower shall not be permitted to make cash interest payments in respect of the Senior First Lien Notes referred to in clause (b) of the definition thereof, (ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
the Senior Second Lien Notes and (iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes regularly scheduled interest payments as and when due as a result in respect of the voluntary sale or transfer Senior Subordinated Notes; provided, however, that on and prior to July 15, 2007, the Parent Borrower shall not be permitted to make cash interest payments in respect of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartySenior Subordinated Notes.
Appears in 1 contract
Sources: Working Capital Credit Agreement (Pliant Corpororation)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except, (x) any Loan Party may make a Permitted Holdings Dividend and (y) so long as no Event of Default shall have occurred and be continuing or would result therefrom (including after giving effect thereto on a pro forma basis), (i) each of Holdings and the Borrowers may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common stock, and, with respect to its preferred stock, payable solely in additional shares of such preferred stock or preferred in shares of its common stock, (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other SubsidiaryBorrowers, (iii) the Borrower Loan Parties and their Subsidiaries may make distributions Restricted Payments payable solely in the form of their Equity Interests pursuant to Holdings and in accordance with employment agreements, bonus plans, stock option plans, or other benefit plans for payment of reasonable out-of-pocket operating existing, new and administrative costs former management, directors, employees and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business consultants of the BorrowerLoan Parties and their Subsidiaries, (iv) Holdings and its Subsidiaries may make any other Restricted Payment, so long as the aggregate amount of all such Restricted Payments made pursuant to this clause (iv) during any Fiscal Year does not exceed the sum of $5,000,000 plus the Cumulative Retained Excess Cash Flow Amount that is in effect immediately prior to the time of making of such Restricted Payment (provided that the use of the Cumulative Retained Excess Cash Flow Amount to make Restricted Payments shall be subject to (A) no Default shall have or Event of Default has occurred and is continuing or would occur be caused by the making of such Restricted Payment and (B) (x) both prior to and after giving effect to such Restricted Payment, the Senior Secured Leverage Ratio shall not exceed 3.25:1.00 as a result thereofof the last day of the most recent Fiscal Quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, as of the last Fiscal Quarter included in the financial statements referred to in Section 3.04(a)) and (ivy) the Borrower may make distributions Representative shall have delivered to Holdings in an amount necessary to enable Holdings to pay when duethe Administrative Agent a certificate of a Financial Officer of Holdings, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) setting forth reasonably detailed calculations demonstrating the operations satisfaction of the Borrower, the Manager condition appearing in clause (x) above) and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted]Holdings may enter into, (vi) Potbelly Franchising may declare exercise its rights and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided thatperform its obligations under, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Call Spread Swap Agreements.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness permitted under this Agreement, other than payments in respect of the Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) payment of intercompany Indebtedness incurred in accordance with Section 6.01;
(iv) refinancings of Indebtedness to the extent permitted by Section 6.01;
(ivv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness so long as the proceeds of such sale are sufficient to repay such Indebtedness in full;
(vi) payments made in respect of the sinking fund requirement under the New Markets Tax Credit Financing, so long as (i) after giving effect to such payment, the aggregate amount of all such payments does not exceed the then outstanding principal amount of the Dairyland HP Indebtedness, and (ii) no Default or Event of Default has occurred and is continuing or would be caused by such payment;
(vii) prepayments or repayments with respect to the Dairyland HP Indebtedness, so long as no Default or Event of Default has occurred and is continuing or would be caused by such payment;
(viii) mandatory prepayments and voluntary repayments of Indebtedness under the ABL Facility to the extent not prohibited by the Intercreditor Agreement;
(ix) issuance of Equity Interests, or making cash payments (in the case of any cash payments in respect of Permitted Convertible Seller Notes, so long as no Default or Event of Default has occurred and is continuing or would be caused by such payment), in connection with or as part of the conversion, redemption, retirement, prepayment or cancellation of any Permitted Convertible Notes;
(x) payment of regularly scheduled interest payments in respect of Permitted Convertible Seller Notes permitted pursuant to clause (i) of Section 6.01(j) hereof, so long as no Default or Event of Default has occurred and is continuing or would be caused by such payment; and
(vxi) repayments onany other payments in respect of Subordinated Indebtedness, reductions of, forgiveness of or the termination of the Parent Note so long asas (i) the aggregate amount of all payments made pursuant to this clause (xi) does not exceed the Cumulative Retained Excess Cash Flow Amount that is in effect immediately prior to the time of making such payment, in any case, (ii) no Default or Event of Default has occurred and is continuing or would be caused by such payment and (iii) (x) both prior to and after giving effect to such payment, the Senior Secured Leverage Ratio shall not exceed 3.25:1.00 as of the last day of the most recent Fiscal Quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such repaymentfinancial statements, reductionas of the last Fiscal Quarter included in the financial statements referred to in Section 3.04(a)) and (y) the Borrower Representative shall have delivered to the Administrative Agent a certificate of a Financial Officer of Holdings, forgiveness setting forth reasonably detailed calculations demonstrating the satisfaction of the condition appearing in clause (x) above; provided, however, that no such payment or distribution shall be made in respect of the ABL Obligations in violation of the Intercreditor Agreement or in respect of any Subordinated Indebtedness in violation of the subordination provisions applicable thereto.
(c) No Loan Party will, nor will it permit any Subsidiary to, make, directly or indirectly, any Specified Earn-Out Payment, unless no Default or Event of Default has occurred and is continuing or would be caused by such Specified Earn-Out Payment.
(d) Notwithstanding the foregoing provisions of this Section 6.08, from the First Amendment Date through the Closing Date Leverage Restoration Date,
(i) no Loan Party will, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, that otherwise would be permitted under clauses (x) (solely in respect of Permitted Holdings Dividends described in clause (ii) of the definition thereof) or (y)(iv) of Section 6.08(a); and
(ii) no Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, that otherwise would be permitted under clauses (iv) (other transactions than with respect to be consummated simultaneously therewithany refinancing of the NMTC Financing), there is no net (vii) (with respect to prepayments only), (ix) (other than with respect to the issuance of Equity Interests or the making of cash outflow to Holdings from payments, in each case, upon conversion of the Borrower or any other Loan PartyPermitted Convertible Seller Notes), and (xi) of Section 6.08(b).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Other than as specified in the first sentence of Section 5.11, neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred capital stock, (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower Holdings may make distributions Restricted Payments, not exceeding $2,000,000 during any fiscal year, pursuant to Holdings and in accordance with stock option plans or other benefit plans for payment directors, management or employees of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager Borrower and the Subsidiaries, including the redemption or purchase of capital stock of Holdings held by former directors, management or employees of Holdings, the Borrower, as the case may be, and incurred primarily in connection with the business Borrower or any Subsidiary following termination of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereoftheir employment, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings at such times and in such amounts, not exceeding $2,000,000 during any fiscal year, as shall be necessary to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire discharge its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, permitted liabilities and (viiiv) Permitted J/Vs the Borrower and the Joint Venture Holding Companies may make Restricted Payments to Holdings at such times and in such amounts (but not prior to the holders fifth anniversary of their Equity Interests so long the date of issuance of the Cumulative Preferred Stock) as shall be necessary to enable Holdings, after such fifth anniversary, to pay dividends in cash on such Cumulative Preferred Stock as and when declared and payable, provided that, at the time of each Restricted Payment made in reliance upon this clause (v) and after giving pro forma effect to such payment, the Leverage Ratio shall not exceed 1.50 to 1.00, (vi) Holdings, the Borrower and the Subsidiaries may make Restricted Payments are made as and to the extent contemplated by the Recapitalization Agreement and (vii) Holdings may make Restricted Payments on account of the purchase, redemption or repurchase of the Cumulative Preferred Stock with the net proceeds of a pro rata basis substantially concurrent IPO, provided that, after giving effect to all such holders in accordance with their respective Equity Interests in such Permitted J/V.purchase, redemption or repurchase, no Default or Event of Default shall have occurred and be continuing.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
, other than (A) payments in respect of the Subordinated Debt and the Junior Subordinated Note prohibited by the subordination provisions thereof, (B) principal payments in respect of the Junior Subordinated Note and (C) cash interest payments in respect of the Junior Subordinated Note unless, in the case of any such payment specified in this clause (C), at the time of such payment and after giving pro forma effect thereto the Leverage Ratio shall not exceed 1.50 to 1.00 and such payment is due and payable on or after the fifth anniversary of the date of issuance of the Junior Subordinated Note; (iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Party.
Appears in 1 contract
Sources: Credit Agreement (SCG Holding Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willUnless either the Leverage Test or the Ratings Test shall be satisfied at such time and would remain satisfied after giving effect to such payment or distribution, nor the Parent will it not, and will not permit any Subsidiary of the Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings Subsidiaries may declare and pay dividends ratably with respect to its common or preferred stock payable solely in additional shares of its common or preferred their capital stock, (ii) any Subsidiary so long as no Default or Event of Default shall have occurred and be continuing at the time of such payment and no Default would occur as a result of making such payment, (A) the Parent may make Restricted Payments to the Borrower, any Subsidiary extent that is a Loan Party may make the aggregate amount of all such Restricted Payments in the current fiscal quarter, taken together with the aggregate amount of all such Restricted Payments in respect of such Restricted Payments in the three fiscal quarters immediately preceding such fiscal quarter, is not in excess of $100,000,000 plus 25% of Adjusted Consolidated Net Income for the four fiscal quarter period ending most recently prior to the time any other Subsidiary that such Restricted Payment is a Loan Partymade and (B) the Parent may pay regular dividends or distributions in respect of preferred stock issued after the date hereof, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) notwithstanding the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily limitation in connection with the business of the Borrowersubsection (ii) above, so long as no Default or Event of Default shall have occurred and is be continuing at the time of a repurchase and no Default or Event of Default would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrowermaking that repurchase, the Manager and their Subsidiaries Parent may repurchase its capital stock to the extent that are due and payable by Holdings as the parent aggregate amount since August 4, 2004, of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest all such cash dividends payments in the Borrower; provided thatrespect of such repurchases shall not exceed $500,000,000, in each such caseaddition to any repurchases allowed under subsection (ii) above. For purposes of clause (ii) above, Holdings actually and promptly uses such dividends “Adjusted Consolidated Net Income” for any period shall mean the sum, without duplication, for such investments, (vii) each Loan Party may purchase, redeem period of Consolidated Net Income plus any special one-time or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as extraordinary non-cash charges deducted in calculating such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Consolidated Net Income.
(b) No Loan Party willUnless either the Leverage Test or the Ratings Test shall be satisfied at such time and would remain satisfied upon making such payment or distribution, nor the Borrower and the Parent will it not, and will not permit any Subsidiary of their respective Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest payments and scheduled or mandatory principal payments as and when due in respect of any Indebtedness, other than payments in respect of subordinated debt prohibited by the subordination provisions thereof, and payments made to the Parent or any Subsidiary by Securitization Entities in respect of subordinated Indebtedness incurred pursuant to any Securitization;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) repayments of Indebtedness of acquired Persons or businesses in connection with and substantially simultaneously with the consummation of Permitted Acquisitions or Permitted Other Acquisitions; and
(v) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Party.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willEach Borrower will not, nor will it permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except so long as no Default or Event of Default shall have occurred and be continuing (or shall result from the payment thereof), (i) Holdings Restricted Subsidiaries may declare and pay dividends ratably with respect to its common or preferred stock payable solely in additional shares of its common or preferred their capital stock, (ii) any Subsidiary FCX may make Restricted Payments pay regularly scheduled quarterly dividends in respect of its preferred stock issued and outstanding on the Effective Date and effect regularly scheduled mandatory redemptions of its preferred stock issued and outstanding on the Effective Date, in each case, to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, extent and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, in the amounts required by the prospectus under which such preferred stock was issued and (iii) the Borrower FCX may make distributions (A) Restricted Payments in cash in any amounts to Holdings for the extent that, immediately after giving effect thereto (and giving pro forma effect to the payment of reasonable out-of-pocket operating such cash), Liquidity is not less than the Required Liquidity Amount and administrative costs (B) Restricted Payments in cash not otherwise permitted by clause (A), including Restricted Payments made when Liquidity is less than the Required Liquidity Amount and expenses payable by Holdingsthe amount of Restricted Payments that cause Liquidity to decrease below the Required Liquidity Amount, provided that no Restricted Payments shall be made pursuant to this clause (B) unless, immediately after giving effect thereto (and to any expenditure of cash required thereby), the Manager aggregate cumulative amount of all Restricted Payments made pursuant to this clause (B) does not exceed an amount equal to (I) the sum of (x) $75,000,000 plus (y) 50% of Consolidated Net Income during the period from January 1, 2003, through the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b) on or prior to the Borrowerproposed date of such Restricted Payment (or, as if such Consolidated Net Income is a deficit, minus 100% of such deficit) minus (II) the case may be, aggregate amount of payments of other Indebtedness and incurred primarily prepayments or repurchases of Convertible Notes (x) at a time when Liquidity is already less than the Required Liquidity Amount or (y) to the extent and in the amount that such payments of other Indebtedness and prepayments or repurchases of Convertible Notes caused Liquidity to drop below the Required Liquidity Amount (determined immediately after giving effect to such repurchases or prepayments and giving pro forma effect to any deferred payment of cash required thereby) minus (III) (x) the aggregate amount of all Investments made in reliance on clause (p) of Section 6.04 (determined immediately prior to and after giving effect to such Investment and giving pro forma effect to any payment of cash or Borrowings hereunder in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Investment).
(ba) No Loan Party willEach Borrower will not, nor will it permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities (other than common stock of FCX) or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities (other than common stock of FCX) or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.016.01(a);
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) the purchase of 2026 Senior Notes as a result of a put of such 2026 Senior Notes by the holders thereof in November 2003;
(vi) prepayments of Indebtedness owed to either Borrower by the other Borrower or a Restricted Subsidiary or owed to a Restricted Subsidiary by another Restricted Subsidiary, provided that prepayments of Indebtedness owed to a Restricted Subsidiary that is not a Loan Party shall be permitted only to the extent no Default has occurred and is continuing at the time of such prepayment;
(vii) FCX may pay cash inducements to holders of Convertible Notes to cause such holders to exercise their option to convert such Convertible Notes in an aggregate amount equal to the remaining amount of the interest reserve for the Convertible Notes allocable to the Convertible Notes so converted; and
(vviii) repayments on, reductions of, forgiveness payments of Indebtedness and prepayments or the termination repurchases of the Parent Note so long as, in any case, Convertible Notes that are not permitted by clauses (i)-(vii) of this Section 6.08(b)(I) if immediately prior to and after giving effect to such payment of Indebtedness or prepayments or repurchases of Convertible Notes (and giving pro forma effect to any payment of cash in connection with such repaymentpayment of Indebtedness or prepayments or repurchases of Convertible Notes), reductionLiquidity is not less than the Required Liquidity Amount or (II) if the condition described in clause (I) shall not be satisfied, forgiveness if and to the extent that the amount of Restricted Payments permitted pursuant to clause (iii)(B) of Section 6.08(a) would be greater than zero.
(b) Each Borrower will not, and will not permit any Restricted Subsidiary to, enter into or termination be party to, or make any other transactions to be consummated simultaneously therewithpayment under, there is no net cash outflow to Holdings from the Borrower or any other Loan PartySynthetic Purchase Agreement.
Appears in 1 contract
Sources: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any of the Subsidiary Loan Parties to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except, to the extent that no Default has occurred and is continuing or would result therefrom:
(i) Holdings the Borrower may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares Equity Interests of its common or preferred stock, the same class;
(ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions declare and pay cash dividends with respect to Holdings any outstanding shares of Series A Preferred Stock, provided that the aggregate amount of such cash dividends paid by the Borrower from the Effective Date to July 1, 2003 shall not exceed the sum of (A) $21,000,000 plus (B) Excess Cash Flow for payment the fiscal year ending December 31, 2002 plus (C) the Net Proceeds received by the Borrower in respect of reasonable out-of-pocket operating and administrative costs and expenses payable the issuance by Holdings, the Manager Borrower of additional Equity Interests to the extent not otherwise used for Permitted Acquisitions or the Borrowerpurchase, as the case may be, and incurred primarily in connection with the business redemption or retirement of the Borrower, so long as no Default shall have occurred 2008 Subordinated Notes pursuant to clause (v) of Section 6.08(b);
(iii) Subsidiary Loan Parties may declare and is continuing or would occur as a result thereof, pay dividends ratably with respect to their Equity Interests;
(iv) the Borrower may make distributions Restricted Payments, not exceeding $500,000 during any fiscal year, pursuant to Holdings and in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (accordance with stock option plans or arising as a result of) the operations other benefit plans for management or employees of the Borrower, the Manager Borrower and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, its Subsidiaries;
(v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs Borrower may make Restricted Payments for the purpose of purchasing, redeeming or refinancing the shares of Series A Preferred Stock in an amount not exceeding $11,000,000 (it being understood and agreed that any shares of Series A Preferred Stock purchased or redeemed pursuant to this clause (v) shall immediately be canceled by the holders Borrower); and
(vi) the Borrower may make Restricted Payments in cash, not exceeding $15,000,000, for the purpose of their Equity Interests so long as purchasing or redeeming shares of the Borrower's common stock; provided that if the Total Leverage Ratio shall be less than 4.50 to 1.00, on a pro forma basis after giving effect to such Restricted Payment, then the Borrower may make additional Restricted Payments pursuant to this clause (vi) in excess of $15,000,000; provided further that the aggregate amount of all such Restricted Payments are made pursuant to this clause (vi) on a pro rata cumulative basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.from the Restatement Effective Date shall not exceed $30,000,000.
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary Loan Party to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment or prepayment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness permitted by Section 6.01;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) payments, in an aggregate amount not to exceed the sum of (A) the Net Proceeds received by the Borrower in respect of the issuance by the Borrower of additional Equity Interests to the extent not otherwise used for Permitted Acquisitions or the payment of cash dividends in respect of the Series A Preferred Stock pursuant to clause (ii) of Section 6.08(a) plus (B) Excess Cash Flow for each fiscal year beginning with the fiscal year ending December 31, 2003, to the extent not otherwise used to prepay Term Borrowings in accordance with Section 2.10(d), for the purpose of purchasing, redeeming or retiring the 2008 Subordinated Notes or Permitted Subordinated Debt (it being understood and agreed that any 2008 Subordinated Notes or Permitted Subordinated Debt purchased pursuant to this clause (v) shall immediately be canceled by the Borrower);
(vi) purchase of 2008 Subordinated Notes accepted for payment pursuant to the Debt Tender Offer on the Restatement Effective Date (it being understood and agreed that any 2008 Subordinated Notes purchased pursuant to this clause (vi) shall immediately be canceled by the Borrower); and
(vvii) repayments on, reductions of, forgiveness of or the termination payments in respect of the Parent Note so long aspurchase, redemption or retirement of any 2008 Subordinated Notes that remain outstanding after the Restatement Effective Date with the proceeds of the Tranche C Term Loans (it being understood and agreed that any 2008 Subordinated Notes purchased pursuant to this clause (vii) shall immediately be canceled by the Borrower); provided that proceeds of the Tranche C Term Loans in an amount equal to or greater than the cumulative amount of such payments (minus any case, after giving effect to any amounts released from such repayment, reduction, forgiveness or termination any other transactions escrow upon the request of the Borrower to be consummated simultaneously therewithused for purposes permitted under Section 5.11 (other than the purchase, there redemption or retirement of any 2008 Subordinated Notes pursuant to this clause (vii)), which amounts shall be released promptly by the Administrative Agent unless an Event of Default has occurred or is no net cash outflow continuing) shall have been deposited in an account maintained by the Administrative Agent on the Restatement Effective Date and shall remain in escrow prior to Holdings from such purchase, redemption or retirement; provided further that the Borrower or will not be required to deposit into escrow any other Loan Partyproceeds of the Tranche C Term Loans pursuant to this clause (vii) if the aggregate principal amount of the 2008 Subordinated Notes outstanding on the Restatement Effective Date is not more than $19,000,000.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Cumulus Media Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willUnless either the Leverage Test or the Ratings Test shall be satisfied at such time and would remain satisfied after giving effect to such payment or distribution, nor the Borrower will it not, and will not permit any Subsidiary of the Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings Subsidiaries may declare and pay dividends ratably with respect to its common or preferred stock payable solely in additional shares of its common or preferred their capital stock, (ii) any Subsidiary so long as no Default or Event of Default shall have occurred and be continuing at the time of such payment and no Default would occur as a result of making such payment, (A) the Borrower may make Restricted Payments to the Borrower, any Subsidiary extent that is a Loan Party may make the aggregate amount of all such Restricted Payments to any other Subsidiary that is a Loan Partyin the current fiscal quarter, and any Subsidiary that taken together with the aggregate amount of all such Restricted Payments in respect of such Restricted Payments in the three fiscal quarters immediately preceding such fiscal quarter, is not a Loan Party may make in excess of $100,000,000 plus 25% of Adjusted Consolidated Net Income for the four fiscal quarter period ending most recently prior to the time any such Restricted Payments to any other Subsidiary, Payment is made and (iiiB) the Borrower may make pay regular dividends or distributions to Holdings for payment in respect of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, preferred stock issued after the Manager or the Borrower, as the case may bedate hereof, and incurred primarily (iii) notwithstanding the limitation in connection with the business of the Borrowersubsection (ii) above, so long as no Default or Event of Default shall have occurred and is be continuing at the time of a repurchase and no Default or Event of Default would occur as a result thereofof making that repurchase, (iv) the Borrower may make distributions repurchase its capital stock to Holdings the extent that the aggregate amount since August 4, 2004, of all such payments in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations respect of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided thatrepurchases shall not exceed $500,000,000, in each such caseaddition to any repurchases allowed under subsection (ii) above. For purposes of clause (ii) above, Holdings actually and promptly uses such dividends “Adjusted Consolidated Net Income” for any period shall mean the sum, without duplication, for such investments, (vii) each Loan Party may purchase, redeem period of Consolidated Net Income plus any special one-time or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as extraordinary non-cash charges deducted in calculating such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Consolidated Net Income.
(b) No Loan Party willUnless either the Leverage Test or the Ratings Test shall be satisfied at such time and would remain satisfied upon making such payment or distribution, nor the Borrower will it not, and will not permit any Subsidiary of its Subsidiaries to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest payments and scheduled or mandatory principal payments as and when due in respect of any Indebtedness, other than payments in respect of subordinated debt prohibited by the subordination provisions thereof, and payments made to the Borrower or any Subsidiary by Securitization Entities in respect of subordinated Indebtedness incurred pursuant to any Securitization;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) repayments of Indebtedness of acquired Persons or businesses in connection with and substantially simultaneously with the consummation of Permitted Acquisitions or Permitted Other Acquisitions;
(v) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(vvi) repayments onthe conversion of 5% Convertible Subordinated Notes issued by Amerisource Health Corporation (now known as AmerisourceBergen Services Corporation) due December 1, reductions of2007 to, forgiveness of or the termination exchange of such Notes for, common stock of the Parent Note so long asBorrower, in any case, after giving effect or the redemption of such Notes for cash pursuant to any a notice of redemption given at a time when no Default or Event of Default shall have occurred and be continuing (or would occur as a result of the redemption of all such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyNotes for cash).
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) the Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (ii) Holdings may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares of its common or preferred stockQualified Equity Interests, (iiiii) any Subsidiary so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, Holdings may and the Borrower may, or may make Restricted Payments to the BorrowerHoldings so that Holdings may, any Subsidiary that is a Loan Party may make Restricted Payments not exceeding (A) $24,000,000 for the period commencing on the Effective Date and ending on the one-year anniversary of the Effective Date and (B) $9,000,000 for each year thereafter (in each case excluding salaries and bonuses) (plus, for purposes of clause (y) below, commencing with the year ending on the third anniversary of the Effective Date, an amount equal to 50% of any other Subsidiary such amount permitted without giving effect to this parenthetical in the immediately preceding year but not so utilized; provided, that is a Loan Party, and any Subsidiary that is not a Loan Party may make such Restricted Payments made during any year shall be deemed made first in respect of the amount permitted for such year and second in respect of the amount carried over from the prior year pursuant to any this parenthetical) (x) pursuant to and in accordance with shareholders’ agreements, stock option or other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable outequity-of-pocket operating and administrative costs and expenses payable based incentive plans or other benefit plans approved by Holdings, the Manager ’ or the Borrower, as the case may be, and incurred primarily in connection with the business ’s board of directors (or substantially equivalent governing body) for management or employees of the BorrowerBorrower and the Subsidiaries and/or (y) to current or former employees or directors on account of purchases or redemptions of stock, so long as no Default shall have occurred and is continuing warrants or would occur as options (or similar rights) of Holdings (or any direct or indirect parent of Holdings) held by such Person (or a result thereofpermitted transferee of such person), (iv) the Borrower may make distributions Restricted Payments to Holdings, and Holdings may make Restricted Payments to RPH, at such times and in an amount such amounts (A) as shall be necessary to enable permit Holdings and RPH to discharge their general corporate, limited liability company and overhead expenses (including franchise taxes and directors fees) incurred in the ordinary course and other permitted liabilities (other than, for the avoidance of doubt, to make payments to the Sponsor or any Sponsor Affiliate), (B) to pay when due, its actual federal, state and local income Taxes the Tax liabilities directly attributable to (or arising solely as a result of) the operations of the BorrowerBorrower and the Subsidiaries; provided, however, that (1) the Manager amount of Restricted Payments pursuant to clause (B) of this clause (iv) shall not exceed the amount that the Borrower and their the Subsidiaries that 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 (2) all Restricted Payments made to Holdings and RPH pursuant to this clause (iv) are due and payable used by Holdings as and RPH for the parent of a consolidated grouppurposes specified herein within five Business Days after Holdings’ or RPH’s receipt thereof, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs Borrower may make Restricted Payments to the holders extent necessary to permit Holdings to make payments (or make Restricted Payments intended to be used to make payments) to the Sponsor or Sponsor Affiliates of their Equity Interests or on account of reimbursement of reasonable costs, expenses, indemnities and payment of monitoring, management or similar fees and transaction fees to the extent permitted by Section 6.09(b), provided that no Event of Default shall have occurred and be continuing or would result therefrom, (vi) so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, Holdings may and the Borrower may, or may make Restricted Payments to Holdings so that Holdings may, make Restricted Payments in an amount not exceeding the sum of (x) $48,000,000, commencing after the first anniversary of the Effective Date, during the term of this Agreement, and (y) the amount of any equity contributions made to Holdings (the proceeds of which are contributed to the Borrower as common equity (excluding the proceeds of any Specified Equity Contribution)) (less any amount used to make prepayments or early redemptions or acquisitions for value of or in respect of the principal amount of or interest on any Indebtedness pursuant to Section 6.08(b)(v) after the Effective Date and on or prior to the date such Restricted Payment is made), (vii) so long as (A) no Default or Event of Default has occurred and is continuing and (B) the Total Leverage Ratio as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered (or are required to be delivered) pursuant to Section 5.01 to the Administrative Agent is less than or equal to [ ], other Restricted Payments in an amount not exceeding the Available Basket Amount on the date that such Restricted Payments are made on made, (viii) repurchases of capital stock of Holdings deemed to occur upon the exercise of options, warrants or similar rights solely to the extent that shares of such capital stock represent a pro rata basis portion of the exercise price of such options, warrants or similar rights and (ix) the making of cash payments 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. Notwithstanding any other provision of this Agreement, in the event that the Borrower or any Subsidiary makes any investment in Holdings pursuant to all Section 6.04(p) in lieu of making a Restricted Payment permitted under any clause of the immediately preceding sentence, the amount of Restricted Payments permitted under such holders in accordance with their respective Equity Interests in clause of the immediately preceding sentence shall be automatically decreased by the amount of such Permitted J/V.investment.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary Loan Party to, make or agree to pay or make, directly or indirectly, any payment voluntary or other distribution optional prepayment on or early redemption or acquisition for value (whether in cash, securities or other propertyproperty and including any sinking fund or similar deposit) of or in respect of the principal amount of or interest on any Subordinated Indebtedness, Sponsor Subordinated Indebtedness, any Refinancing Notes issued pursuant to Section 2.20 constituting unsecured notes, senior unsecured notes, senior subordinated notes or junior lien secured notes, or Refinancing Term Loans made pursuant to Section 2.20 constituting junior lien secured term loans, or any payment or other distribution prior to the stated maturity thereof (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Subordinated Indebtedness, exceptSponsor Subordinated Indebtedness, any Refinancing Notes issued pursuant to Section 2.20 constituting unsecured notes, senior unsecured notes, senior subordinated notes or junior lien secured notes, or Refinancing Term Loans made pursuant to Section 2.20 constituting junior lien secured term loans, or any other payment (including any payment under any Swap Agreement) that has a substantially similar effect to any of the foregoing, except as otherwise permitted by this Agreement and except for:
(i) payment of Indebtedness created under the Loan DocumentsDocuments and the Additional Term Notes;
(ii) payment of regularly scheduled interest and principal payments as (with respect to the form of payment) and when due in respect of any IndebtednessIndebtedness permitted under Section 6.01 (provided that any payments of interest or other amounts in respect of (a) any Sponsor Subordinated Indebtedness and (b) any Subordinated Indebtedness (other than in respect of which cash interest payments are otherwise permitted to be made in accordance with the terms of this Agreement), in each case shall be in kind rather than in cash);
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment so long as (A) no Default or Event of secured Indebtedness that becomes due Default has occurred and is continuing or would result therefrom and (B) the Total Leverage Ratio as a result of the voluntary sale or transfer last day of the property most recently ended fiscal quarter for which financial statements have been delivered (or assets securing are required to be delivered) pursuant to Section 5.01 to the Administrative Agent is less than or equal to [ ], any other such Indebtedness; andprepayment, early redemption or acquisition for value in an amount not exceeding the Available Basket Amount on the date that such prepayment, early redemption or acquisition for value is made;
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long asas no Event of Default or Default shall have occurred and be continuing or would result therefrom, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewithsuch prepayment, there is no net cash outflow early redemption or acquisition for value in an amount not exceeding the sum of (x) $30,000,000 during the term of this Agreement and (y) the amount of any equity contributions made to Holdings from (the proceeds of which are contributed to the Borrower as common equity other than the proceeds of any Specified Equity Contribution) (less any amount used to make Restricted Payment pursuant to Section 6.08(a)(vi) on or any other Loan Partyprior to the date such prepayment, early redemption or acquisition for value is made).
Appears in 1 contract
Sources: Second Lien Credit Agreement (Jda Software Group Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Other than the payment of amounts payable under the Acquisition Documents as consideration for the Acquisition (or paying a dividend to Holdings to enable Holdings to make any such payment), neither Holdings nor the Borrower will, nor will it they permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) Holdings may make Restricted Payments (and the Borrower may make Restricted Payments to the BorrowerHoldings to enable Holdings to make such Restricted Payments), not exceeding $2,000,000 during any Subsidiary that is a Loan Party may make Restricted Payments fiscal year, pursuant to any and in accordance with stock option plans or other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) benefit plans for management or employees of the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereofits Subsidiaries, (iv) the Borrower may make distributions pay dividends to Holdings at such times and in an amount such amounts, not exceeding $2,000,000 during any fiscal year, as shall be necessary to permit Holdings to pay reasonable administrative expenses incurred in the ordinary course of its business, (v) Holdings may make Restricted Payments (and the Borrower may make Restricted Payments to Holdings to enable Holdings to make such Restricted Payments), not exceeding $5,000,000 in any fiscal year and not exceeding $10,000,000 in the aggregate during the term of this Agreement, to repurchase Equity Interests in Holdings owned by employees or former employees of the Borrower or the Subsidiaries pursuant to the terms of agreements (including employment agreements) with such employees, (vi) the Borrower may make Restricted Payments to Holdings to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable management fees pursuant to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries Management Agreement that are due and payable by Holdings as the parent permitted to be paid pursuant to clause (c) of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investmentsSection 6.09, (vii) the Borrower may make Restricted Payments to Holdings at such times and in such amounts (but not prior to the fifth anniversary of the date of issuance of the Holdings Discount Notes) as shall be necessary to enable Holdings (A) on the fifth anniversary of the date of issuance of the Holdings Discount Notes, to redeem the amount of Holdings Discount Notes equal to the Holdings Discount Notes Redemption Amount and (B) after such fifth anniversary, to make interest payments in cash on such Holdings Discount Notes as and when due; provided, that at the time of and after giving effect to each Loan Party may purchaseRestricted Payment made in reliance upon this clause (vii), redeem or otherwise acquire the Borrower and its common or preferred Equity Interests Restricted Subsidiaries are in compliance with the proceeds received from covenants contained in Sections 6.12 and 6.13 as of the substantially concurrent issuance end of new common the most recent fiscal quarter for which financial statements are available assuming that Total Debt or preferred Equity Interests Total Senior Debt, as applicable, as of the last day of such quarter had been equal to the Total Debt or where Total Senior Debt, as applicable, as of the consideration is the cancellation date of Indebtedness owed such Restricted Payment after giving effect to any Loan Partysuch Restricted Payment, and (viii) Permitted J/Vs Holdings and the Borrower may make additional Restricted Payments for the purposes contemplated by clauses (iii) through (v) of this Section 6.08(a) in an aggregate amount not to exceed $5,000,000 during the term of this Agreement; provided that any Restricted Payment otherwise permitted by clause (iii) and clauses (v) through (viii) above shall not be permitted if at the time thereof and after giving effect thereto a Default shall have occurred and be continuing; provided further, that the provisions of clauses (iii) through (viii) above that permit certain dividends or other Restricted Payments to Holdings shall not be construed to permit the holders payment of their dividends or other Restricted Payments to any other holder of Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.of the Borrower.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Debt or Existing Notes prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) repayment of all amounts outstanding under the Existing Credit Agreement and purchase of the Existing Notes accepted for payment pursuant to the Debt Tender Offer, in each case on the Effective Date; and
(vvi) repayments on, reductions of, forgiveness redemption of or the termination any Existing Notes that remain outstanding after consummation of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyDebt Tender Offer.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) Holdings may make Restricted Payments (and the Borrower may make Restricted Payments to the BorrowerHoldings to enable Holdings to make such Restricted Payments), not exceeding $4,000,000 during any Subsidiary that is a Loan Party may make Restricted Payments fiscal year, pursuant to any and in accordance with stock option plans or other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) benefit plans for management or employees of the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereofits Subsidiaries, (iv) the Borrower may make distributions pay dividends to Holdings at such times and in such amounts, not exceeding $2,000,000 during any fiscal year, as shall be necessary to permit Holdings to pay reasonable administrative expenses incurred in the ordinary course of its business, (v) Holdings may make Restricted Payments (and the Borrower may make Restricted Payments to Holdings to enable Holdings to make such Restricted Payments), not exceeding in any fiscal year the sum of (A) $5,000,000 plus (B) an amount not to exceed an additional $5,000,000 less the amount of Restricted Payments made by Holdings (and the Borrower) in reliance on this clause (v) during the prior fiscal year and not exceeding $20,000,000 in the aggregate from the Effective Date, to repurchase Equity Interests in Holdings owned by employees or former employees of the Borrower or the Subsidiaries pursuant to the terms of agreements (including employment agreements) with such employees, (vi) the Borrower may make Restricted Payments to Holdings to enable Holdings to pay management fees pursuant to the Management Agreement that are permitted to be paid pursuant to clause (c) of Section 6.09, (vii) the Borrower may make Restricted Payments to Holdings, and any Restricted Subsidiary may make Restricted Payments to any Restricted Subsidiary, the Borrower or to Holdings, to pay any Tax with respect to income attributable to the party making such Restricted Payments as the result of such party being a member of a consolidated, affiliated or unitary group (for tax purposes) that includes Holdings as its parent, (viii) the Borrower may make Restricted Payments to Holdings at such times and in such amounts as shall be necessary to enable Holdings to pay make interest payments in cash on Permitted Holdings Debt (that is not Permitted Holdings PIK Debt) as and when due; provided, that at the time of and after giving effect to each Restricted Payment made in reliance upon this clause (viii), the Borrower and its actual federalRestricted Subsidiaries are in compliance with the covenants contained in Sections 6.12 and 6.13 as of the end of the most recent fiscal quarter for which financial statements are available assuming that Total Debt or Total Senior Secured Debt, state as applicable, as of the last day of such quarter had been equal to the Total Debt or Total Senior Secured Debt, as applicable, as of the date of such Restricted Payment after giving effect to such Restricted Payment, (ix) Holdings and local income Taxes directly attributable the Borrower may make additional Restricted Payments for the purposes contemplated by clauses (iii) through (v) of this Section 6.08(a) in an aggregate amount not to exceed $10,000,000 from the Effective Date, (or arising as a result ofx) the operations Borrower may prepay, redeem or acquire any Subordinated Debt with the Net Proceeds of (A) Permitted Refinancing Indebtedness, (B) up to $40,000,000 in Net Proceeds from Incremental Term Loans, Revolving Commitment Increases or availability under the Revolving Commitments, provided that use of the Net Proceeds from any such Revolving Commitments shall not be permitted unless, after giving effect to such prepayment, redemption or acquisition, availability under the Revolving Commitments shall be at least $25,000,000, (C) any issuance of Equity Interests by Holdings, or (D) subject to Section 6.01(d), Permitted Holdings Debt (provided, in each case, that any Subordinated Debt so prepaid, redeemed or acquired is cancelled and retired) and (xi) in addition to the foregoing Restricted Payments, the Borrower may make Restricted Payments, in an aggregate amount not to exceed the remaining Permitted Restricted Payment Amount as of the date of any such Restricted Payment pursuant to this clause (xi), provided that, at the time of and after giving effect to any such Restricted Payment pursuant to this clause (xi), the Borrower is in compliance with each Financial Covenant, determined on a pro forma basis as of the end of the most recent fiscal quarter for which financial statements are available as though such Restricted Payment had been made on the last day of such fiscal quarter and as though Total Debt and Total Senior Secured Debt as of the end of such fiscal quarter were equal to Total Debt or Total Senior Secured Debt, as applicable, as of the date of and after giving effect to such Restricted Payment; provided further that any Restricted Payment otherwise permitted by clause (iii) and clauses (v) through (xi) above shall not be permitted if at the time thereof and after giving effect thereto a Default shall have occurred and be continuing; provided further, that the provisions of clauses (iii) through (ix) above that permit certain dividends or other Restricted Payments to Holdings shall not be construed to permit the payment of dividends or other Restricted Payments to any other holder of Equity Interests of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V..
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent that the Indebtedness incurred to refinance such other Indebtedness is permitted by under Section 6.01;
(iv) refinancings of Indebtedness with the Net Proceeds of any issuance of Equity Interests by Holdings to any Person other than the Borrower or any Restricted Subsidiary;
(v) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(vi) repayment of all amounts outstanding under the Existing Credit Agreement; and
(vvii) repayments onpayments made to prepay, reductions ofredeem or acquire Subordinated Debt pursuant to and in compliance with clause (x) or (xi) of paragraph (a) of this Section; provided that any Subordinated Debt so prepaid, forgiveness of redeemed or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there acquired is no net cash outflow to Holdings from the Borrower or any other Loan Partycancelled and retired.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor and will it not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings the Borrower may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir capital stock, (iii) the Borrower may make distributions Restricted Payments, not exceeding $1,000,000 during any fiscal year, pursuant to Holdings and in accordance with stock option plans or other benefit plans for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager management or the Borrower, as the case may be, and incurred primarily in connection with the business employees of the Borrower, so long as no Default shall have occurred Borrower and is continuing or would occur as a result thereof, its Subsidiaries and (iv) the Borrower may make distributions repurchase shares of its common stock (either in the open market or through private transactions) pursuant to Holdings the Borrower’s Stock Buyback Program originally announced on April 5, 2001, in an aggregate amount necessary not to enable Holdings exceed $50,000,000 in any fiscal year (it being agreed that any amount not utilized in any fiscal year may be carried forward and utilized in any subsequent fiscal year; provided that (x) at the time of and immediately after giving effect to pay when dueany such Restricted Payment, its actual federal, state and local income Taxes directly attributable to (or arising as a result ofi) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends Borrower shall be in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, Pro Forma Compliance and (viiiii) Permitted J/Vs may make no Default or Event of Default shall have occurred and be continuing and (y) the aggregate amount of Restricted Payments made pursuant to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders this clause (iv) in accordance with their respective Equity Interests any fiscal year shall not in such Permitted J/V.any event exceed $75,000,000).
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
; (ii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result cash portion of the voluntary sale or transfer settlement amount required to be paid to any holder of Convertible Notes upon the conversion thereof in accordance with the terms of the property Convertible Note Documents (provided that no such payment may be financed in whole or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in part by any case, Borrowings unless after giving pro forma effect to any such repayment, reduction, forgiveness or termination any other transactions to thereto there shall be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Party.at least $30,000,000 of unused and available Commitments);
Appears in 1 contract
Sources: Credit Agreement (Dress Barn Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(i) The Borrower or any other Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests, in each case ratably to the holders of such Equity Interests(or if not ratably, on a basis more favorable to the Borrower and the Loan Parties), provided that dividends paid by the Borrower to Holdings may only be paid at such times and in such amounts (subject to any applicable restrictions set forth below) as are necessary, after taking into account other cash held by Holdings, to enable Holdings to make Restricted Payments permitted to be made by it under this Section 6.08;
(ii) Holdings may declare and pay dividends with respect to its common or preferred stock Equity Interests payable solely in additional shares of its common or preferred stockQualified Equity Interests of Holdings;
(iii) Holdings and the Borrower may, (ii) any Subsidiary and the Borrower may make Restricted Payments to the BorrowerHoldings so that Holdings may, may repurchase, purchase, acquire, cancel or retire for value Equity Interests of Holdings from present or former employees, officers, directors or consultants (or their estates or beneficiaries under their estates) of Holdings or any Subsidiary upon the death, disability, retirement or termination of employment or service of such employees, officers, directors or consultants, or to the extent required, pursuant to employee benefit plans, employment agreements, stock purchase agreements or stock purchase plans, or other benefit plans; provided that is a Loan Party may make the aggregate amount of all Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, made in reliance on this subsection (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily shall not exceed $20,000,000 in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, any Fiscal Year;
(iv) the Borrower may make distributions Restricted Payments to Holdings at such times and in an such amounts as shall be necessary, after giving effect to the amount necessary of cash and cash equivalents then otherwise available to enable Holdings (including through dividends or other distributions from other Subsidiaries), (A) to permit Holdings to discharge its general corporate and overhead expenses (including franchise taxes and directors fees) incurred in the ordinary course of business and other permitted liabilities and (B) to pay when due, its actual federal, state and local income Taxes the Tax liabilities of Holdings directly attributable to (or arising as a result of) the operations of the Borrower, Borrower and the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, other Subsidiaries;
(v) [intentionally omitted]Holdings may make cash payments in lieu of the issuance of fractional shares representing insignificant interests in Holdings in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests in Holdings;
(vi) Potbelly Franchising Holdings and the Borrower may declare and pay cash dividends to acquire Equity Interests of Holdings to permit Holdings to invest such cash dividends in upon the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends exercise of stock options for such investmentsEquity Interests of Holdings if such Equity Interests represent a portion of the exercise price of such stock options or in connection with tax withholding obligations arising in connection with the exercise of options by, or the vesting of restricted Equity Interests held by, any current or former director, officer or employee of Holdings or its Subsidiaries;
(vii) each Loan Party Holdings may purchase, redeem convert or otherwise acquire its common or preferred exchange any Equity Interests with the proceeds received from the substantially concurrent issuance of new common Holdings for or preferred into Qualified Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and Holdings;
(viii) Permitted J/Vs so long as no Default shall have occurred and be continuing, (x) Holdings may on any date make Restricted Payments in an amount not in excess of the amount of Qualifying Equity Proceeds available on such date and (y) the Borrower may on any date make Restricted Payments in an amount not in excess of the amount, if any, of Qualifying Equity Proceeds previously distributed to it and not previously applied to Specified Uses (provided, however, that the Borrower shall not, except as permitted by this clause (y), make Restricted Payments to the holders of their Equity Interests Holdings to enable Holdings to make any Restricted Payment under this clause (viii));
(ix) so long as no Default shall have occurred and be continuing or would result therefrom and no ECF Shortfall Amount is at the time outstanding, Holdings and the Borrower may on any date make (and the Borrower may pay a dividend to Holdings on such date in an amount necessary to permit it to make such) Restricted Payments in an amount equal (A) $15,000,000 plus (B) the Available ECF Amount on such date; provided, however, that at the time of the making of such Restricted Payments are and immediately after giving effect to such Restricted Payments made in reliance on subclause (ix)(B), the First Lien Leverage Ratio on such date, calculated on a Pro Forma Basis to give effect to any such Restricted Payment, is not in excess of 3.75 to 1.00;
(x) after an IPO, Holdings may distribute and redeem rights under any stockholder rights plan;
(xi) any Subsidiary may repurchase its Equity Interests held by minority shareholders or interest holders in a transaction permitted by Section 6.04; and
(xii) the Borrower and Holdings may utilize proceeds of the Term Loans made on a pro rata basis the Effective Date and the term loans made under the Second Lien Credit Agreement on the Effective Date to all such holders in accordance with their respective Equity Interests in such Permitted J/V.pay the Dividend.
(b) No Loan Party Neither Holdings nor the Borrower will, nor will it they permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation defeasance, cancelation or termination of any such Indebtedness, or any other payment (including any payment under any Hedging Agreement) that has a substantially similar effect to any of the foregoing, except:
(i) payment payments of Indebtedness created under the this Agreement or any other Loan DocumentsDocument;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than any payments in respect of Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) mandatory prepayments of Indebtedness under the Second Lien Credit Agreement and of Other First Lien Secured Indebtedness, in each case in accordance with the express provisions of Section 2.11 hereof, and mandatory prepayments of Indebtedness under the Second Lien Credit Agreement with Net Proceeds of an IPO;
(iv) prepayments of intercompany Indebtedness permitted hereby owed by Holdings, the Borrower or any Subsidiary to Holdings, the Borrower or any Subsidiary, other than prepayments prohibited by the subordination provisions governing such Indebtedness;
(v) refinancings of Indebtedness to with the extent proceeds of other Indebtedness permitted by under Section 6.01;
(ivvi) payment payments of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such IndebtednessIndebtedness in transactions permitted hereunder;
(vii) payments of or in respect of Indebtedness made solely with Qualified Equity Interests in Holdings or the conversion of any Indebtedness into Qualified Equity Interests of Holdings; and
(vviii) repayments oncash expenditures to prepay, reductions ofpurchase, forgiveness redeem, retire, acquire or defease Indebtedness of Holdings, the Borrower or any Subsidiary not in excess, on the termination date any such expenditure is made, of an amount equal to the Parent Note so long assum of (A) the amount of Qualifying Equity Proceeds available on such date and not previously applied to Specified Uses, in any caseplus (B) if there is no ECF Shortfall Amount outstanding and the First Lien Leverage Ratio on such date, after giving calculated on a Pro Forma Basis to give effect to any such repaymentexpenditure, reductionis not in excess of 4.00 to 1.00, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan PartyAvailable ECF Amount on such date.
Appears in 1 contract
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings may declare and pay dividends with respect to its common or preferred stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary may make Restricted Payments to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary, (iii) the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally so long as the Distribution Conditions have been satisfied (as determined by the Administrative Agent in its reasonable discretion) at the time of, and with respect to, any Restricted Payment not otherwise permitted by the foregoing clauses (i) through (iv), the Borrower may make such Restricted Payment to Holdings and Holdings may make such Restricted Payment to holders of Equity Interests in Holdings so long as (1) the aggregate amount of Restricted Payments made pursuant to this clause (v) after the Effective Date does not exceed the sum of (x) $20,000,000 plus (y) the amount of any such Restricted Payments made at such time as the Additional Distribution Conditions have been satisfied, and (2) such Restricted Payment is made only with the proceeds of cash on hand of the Loan Parties and not with the proceeds of Loans[intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party; , and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Party.
Appears in 1 contract
Sources: Credit Agreement (Potbelly Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings the Borrower may declare and pay dividends with respect to its common stock or preferred stock Qualified Preferred Stock payable solely in additional shares of its common stock or preferred stockQualified Preferred Stock, or make cash payments in lieu of fractional shares, (ii) any Subsidiary may make Restricted Payments to Subsidiaries (other than those directly owned, in whole or part, by the Borrower, any Subsidiary that is a Loan Party ) may make Restricted Payments declare and pay dividends ratably with respect to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir common stock, (iii) the Borrower may make distributions declare and pay cash dividends with respect to Holdings its common stock and effect repurchases, redemptions or other Restricted Payments with respect to its common stock, together in an aggregate amount in any fiscal year of the Borrower not to exceed 50% of Consolidated Net Income (if positive) for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business immediately preceding fiscal year of the Borrower, so long as ; provided that immediately prior and after giving effect to any such payment no Default or Event of Default shall have occurred and is be continuing or would occur as a result thereofand, immediately after giving effect to any such payment, the Borrower shall have Revolver Availability of more than $100,000,000, (iv) the Borrower may make distributions to Holdings pay cash dividends in an amount necessary not to enable Holdings exceed $60,000,000 in any fiscal year of the Borrower with respect to pay when dueany Qualified Preferred Stock; provided that (x) immediately prior and after giving effect to any such payment, its actual federal, state no Default or Event of Default shall have occurred and local income Taxes directly attributable to be continuing and (or arising y) only so long as a result of) the operations of the BorrowerFinancial Covenant Effectiveness Period is then occurring, the Manager Consolidated Fixed Charge Coverage Ratio for the period of four consecutive fiscal quarters most recently ended on or prior to the date of such payment, calculated on a pro forma basis as if such payment were made on the last day of such period (and their Subsidiaries that are due and payable by Holdings as excluding any such payments previously made pursuant to this clause during such four quarter period but attributed for purposes of this calculation to the parent last day of a consolidated groupprior period which day does not occur in such four quarter period) is not less than the ratio applicable to such period of four fiscal quarters under Section 6.12, (v) [intentionally omitted]the Borrower and the Subsidiaries may make Restricted Payments consisting of the repurchase or other acquisition of shares of, or options to purchase shares of, capital stock of the Borrower or any of its Subsidiaries from employees, former employees, directors or former directors of the Borrower or any Subsidiary (or their permitted transferees), in each case pursuant to stock option plans, stock plans, employment agreements or other employee benefit plans approved by the board of directors of the Borrower; provided that no Default has occurred and is continuing; and provided further that the aggregate amount of such Restricted Payments made after the Original Restatement Effective Date shall not exceed $10,000,000, (vi) Potbelly Franchising the Subsidiaries may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided thatthat the Borrower shall, within a reasonable time following receipt of any such payment, use all of the proceeds thereof for a purpose set forth in each such case, Holdings actually and promptly uses such Section 5.10(b) or a Refinancing Amendment (including the payment of dividends for such investmentsrequired or permitted pursuant to this Section 6.08(a)), (vii) each Loan Party the Borrower and the Subsidiaries may purchase, redeem or otherwise acquire its common or preferred declare and pay cash dividends with respect to the Equity Interests with set forth on Schedule 6.08(a) to the proceeds received from extent, and only to the substantially concurrent issuance extent, required pursuant to the terms of new common or preferred such Equity Interests or where any other agreement in effect on the consideration is the cancellation of Indebtedness owed to any Loan Party, Effective Date and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower may redeem or repurchase shares of the Borrower’s and/or its Subsidiaries’ (including Rite Aid Lease Management Company’s) Preferred Stock (A) solely with Net Cash Proceeds received by the Borrower from issuances of its common stock after the Original Restatement Effective Date, provided that any such Restricted Payments are made on a pro rata basis repurchase or redemption is effected within 150 days after the receipt of such proceeds or (B) with other funds available to all the Borrower if, immediately after giving effect to any such holders in accordance with their respective Equity Interests in such Permitted J/V.redemption or repurchase, the Borrower shall have Revolver Availability of more than $100,000,000.
(b) No Loan Party willThe Borrower will not, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness (which, for purposes of this Section 6.08(b), shall include any Indebtedness, including the 2015 8.5% Convertible Notes, incurred pursuant to any of clauses (i) through (xx) of Section 6.01(a)), except:
(i) payment payments or prepayments or exchanges of Indebtedness (including Refinancing Indebtedness) created under the Senior Loan DocumentsDocuments (including any Refinancing Amendment executed in accordance with Section 6.01(c)) and prepayments, repurchases or redemptions of Additional Senior Debt made in accordance with Section 2.11(c);
(ii) payment payments of regularly scheduled interest and principal payments as and when due in respect of any IndebtednessIndebtedness permitted pursuant to Section 6.01(a);
(iii) refinancings prepayments of Indebtedness permitted pursuant to clause (vii), (viii) or (ix) of Section 6.01(a) with the extent proceeds of, or in exchange for, Indebtedness permitted by pursuant to clause (vii), (viii) or (ix) of Section 6.016.01(a), respectively;
(iv) payment payments of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and
(v) repayments on, reductions of, forgiveness of or the termination of the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Party.;
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party willThe Borrower will not, nor will it permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except except
(i) Holdings Restricted Subsidiaries may declare and pay dividends ratably with respect to its common or preferred their capital stock payable solely in additional shares of its common or preferred stock(A) to shareholders other than FCX, (iiB) any Subsidiary may make Restricted Payments to FCX to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments extent the proceeds of such dividends are applied to any other Subsidiary that is a Loan Partypay operating expenses in the ordinary course of business, and (C) to FCX so long as (1) no Event of Default under clause (a) or (b) of Article VII shall have occurred and be continuing and (2) if any Subsidiary that is not a Loan Party may make Restricted Payments to any Event of Default other Subsidiary, than under clause (iiia) or (b) of Article VII shall have occurred and be continuing (or shall result from the Borrower may make distributions to Holdings for payment of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrowerthereof), so long as the Required Lenders shall not have given notice to FCX that such dividends shall not be permitted to be paid during the pendency of such Event of Default,
(ii) so long as no Event of Default shall have occurred and is be continuing (or would occur shall result from the payment thereof), FCX may pay regularly scheduled quarterly dividends in respect of its preferred stock issued and outstanding on the Effective Date and effect regularly scheduled mandatory redemptions of its preferred stock issued and outstanding on the Effective Date, in each case, to the extent and in the amounts required by the terms of such preferred stock as in effect on the Effective Date,
(iii) so long as no Event of Default shall have occurred and be continuing (or shall result from the payment thereof), FCX may, consistent with its dividend practices as of the Effective Date, and subject to the Incurrence Test, declare and pay dividends on its shares of common stock (and on shares of common stock issued upon the conversion of or in exchange for shares of FCX’s 5 1/2% Convertible Perpetual Preferred Stock outstanding on the Effective Date) in an amount in respect of any fiscal quarter not to exceed $0.3125 per share of FCX’s common stock (adjusted as applicable to eliminate the effect of stock dividends, stock splits, reverse stock splits and other transactions in respect of such shares of common stock, and payable in respect of any shares of common stock received pursuant to any such stock dividend, stock split, reverse stock split or other transaction) (it being understood that Restricted Payments made in reliance on this clause (iii) in respect of shares of FCX’s common stock issued or sold after the Effective Date (or in respect of shares received in stock dividends, stock splits, reverse stock splits or other transactions in respect of such shares of common stock) involving either (x) a result thereofreceipt of cash proceeds that increased the Restricted Uses Basket or (y) the receipt of assets in consideration for such common stock shall constitute Restricted Uses and shall reduce the Restricted Uses Basket (which reduction may be to less than zero)), and
(iv) the Borrower may make distributions to Holdings in an amount necessary to enable Holdings to pay when due, its actual federal, state so long as no Event of Default shall have occurred and local income Taxes directly attributable to be continuing (or arising as a shall result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Partypayment thereof), and (viii) Permitted J/Vs subject to the Incurrence Test, FCX may make Restricted Payments in cash in any amounts to the holders extent that, immediately after giving effect thereto (and to any expenditure of their Equity Interests so long as such cash required thereby), the Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in such Permitted J/V.Uses would not be greater than the Restricted Uses Basket.
(b) No Loan Party willThe Borrower will not, nor will it permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any voluntary payment or other voluntary distribution (whether in cash, securities (other than common stock of FCX) or other property) of or in respect of principal of or interest on any Indebtedness, or any voluntary payment or other voluntary distribution (whether in cash, securities (other than common stock of FCX) or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan DocumentsDocuments and payment of Ratable Obligations and Existing PD Obligations;
(ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness, other than payments in respect of Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.016.01(a) (including, without limitation, the refinancing of any Indebtedness, other than the Senior Notes, with Indebtedness permitted under Section 6.01(a)(xi));
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and;
(v) repayments onprepayments of Indebtedness owed to FCX by a Restricted Subsidiary or owed to a Restricted Subsidiary by FCX or another Restricted Subsidiary, reductions ofprovided that prepayments of Indebtedness owed to a Restricted Subsidiary that is not a Loan Party shall be permitted only to the extent no Event of Default has occurred and is continuing at the time of such prepayment, forgiveness except that such prepayments shall be permitted (A) to the extent the proceeds of such prepayments are applied to pay operating expenses or to make Capital Expenditures in the termination ordinary course of business, and (B) to the Parent Note extent the proceeds of such prepayments are applied to pay scheduled debt service of such Restricted Subsidiary so long asas (1) no Event of Default under clause (a) or (b) of Article VII shall have occurred and be continuing and (2) if any Event of Default other than under clause (a) or (b) of Article VII shall have occurred and be continuing (or shall result from the payment thereof), so long as the Required Lenders shall not have given notice to FCX that such prepayments shall not be permitted to be paid during the pendency of such Event of Default;
(vi) prepayments of any Project Financing to the extent made by the applicable Project Financing Subsidiary with cash from the operations of such Project Financing Subsidiary;
(vii) payments of Indebtedness (other than Indebtedness referred to in any case, clause (viii) below) that are not permitted by clauses (i)-(vi) of this Section 6.08(b) if and to the extent that after giving effect to any such repaymentpayments, reductionthe Restricted Uses would not be greater than the Restricted Uses Basket; and
(viii) payment of Indebtedness created under the Restated Credit Agreement and the “Loan Documents” thereunder, forgiveness provided that no Indebtedness may be prepaid under the Restated Credit Agreement (A) at any time that any Loan or termination LC Disbursement is outstanding and (B) if there is outstanding any other transactions Letter of Credit or Letters Credit in an aggregate outstanding amount smaller than such prepayment, unless such Letter of Credit or Letters of Credit are redesignated as Letters of Credit under the Restated Credit Agreement in accordance with Section 2.05(a)(iii).
(c) Neither paragraph (a) nor paragraph (b) above shall prohibit any Restricted Payment or payment of Indebtedness if after giving effect to such Restricted Payment or payment of Indebtedness (i) no Term Loan is outstanding and (ii) the sum of (A) the aggregate unused Revolving Commitments, (B) the aggregate unused Commitments (as defined in the Restated Credit Agreement) and (C) Available Domestic Cash shall be not less than $750,000,000.
(d) Each of paragraph (a) and paragraph (b) above shall cease to be consummated simultaneously therewithof effect from and after the first date upon which the corporate credit ratings of FCX by each of Moody’s and S&P are, there is no net cash outflow to Holdings from the Borrower respectively, Baa3 or any other Loan Partybetter and BBB- or better.
Appears in 1 contract
Sources: Credit Agreement (Freeport McMoran Copper & Gold Inc)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party will, nor will it permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or to make, or agree to make any redemptions or repurchases with respect to its capital stock, or incur any obligation (contingent or otherwise) to do so, except (i) each of Holdings and the Borrower may declare and pay dividends make Restricted Payments with respect to its common or preferred stock Equity Interests payable solely in additional shares of its common Equity Interests, and, with respect to its preferred Equity Interests, payable solely in additional shares of such preferred Equity Interests or preferred stockin shares of its common Equity Interests, (ii) any Subsidiary Restricted Subsidiaries may make Restricted Payments declare and pay dividends ratably with respect to the Borrower, any Subsidiary that is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiarytheir Equity Interests, (iii) Each of Holdings and the Borrower may make distributions Restricted Payments, not exceeding $5,000,000 during any fiscal year, pursuant to Holdings and in accordance with stock option plans or other benefit plans for payment management or employees of reasonable out-of-pocket operating and administrative costs and expenses payable by Holdings, the Manager Borrower and its Restricted Subsidiaries, (iv) each of Holdings and the Borrower may pay dividends or make distributions to the BorrowerPersons holding its Equity Interests in an aggregate amount such that such Persons may pay (x) franchise taxes and other fees, taxes and expenses to maintain their legal existence and (y) federal, state and local income taxes to the extent attributable to Holdings and its Subsidiaries or to the Borrower and its Subsidiaries as the case may be, provided that in all events the amounts paid pursuant to clause (y) shall be amounts sufficient to pay the direct obligations of such Persons for such taxes and incurred primarily in connection with the business obligations of the BorrowerBorrower and Holdings under the Tax Sharing Agreement, provided, however, that (aa) the amounts paid under clause (y) shall not exceed the amount that would be payable, on a consolidated or combined basis, were Holdings the common parent of a separate federal consolidated group or state combined group including the Borrower and its Subsidiaries and (bb) in the case of taxes attributable to the Unrestricted Subsidiary, an amount equal to the amount of such tax payment has been received by the Borrower from the Unrestricted Subsidiary prior to such payment being made; and (v) so long as there exists no Default shall have occurred Event of Default, each of Holdings and is continuing or would occur as a result thereof, (iv) the Borrower may pay dividends or make distributions to Holdings in an amount necessary to enable Holdings to pay when due, the Persons holding its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations of the Borrower, the Manager and their Subsidiaries that are due and payable by Holdings as the parent of a consolidated group, (v) [intentionally omitted], (vi) Potbelly Franchising may declare and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in the Borrower; provided that, in each such case, Holdings actually and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs may make Restricted Payments to the holders of their Equity Interests so long as such Restricted Payments are made on a pro rata basis to all such holders in accordance with their respective Equity Interests in an aggregate amount such Permitted J/V.that such Persons may pay officers, directors and corporate overhead expenses incurred in the ordinary course of business up to a maximum aggregate amount of $2,500,000 in any fiscal year.
(b) No Loan Party will, nor will it permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents and the ABL Loan Documents;
(ii) payment of regularly scheduled interest and principal payments and any mandatory prepayments or redemptions provided no Default has occurred and is continuing hereunder, as and when due in respect of any Indebtedness, other than payments in respect of the Subordinated Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payments or prepayments made with the proceeds of equity issuances; and
(v) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; and.
(vc) repayments onIn addition to Restricted Payments permitted under Section 6.08(a) and payments on or in respect of Indebtedness permitted under Section 6.08(b), reductions of, forgiveness any Loan Party may make Restricted Payments and payments of or in respect of Indebtedness, to the termination extent no Default or Event of Default is continuing at the date of declaration or payment thereof (or would result therefrom), in an amount up to (i) $2,000,000 in any fiscal year plus (ii) 50% of the Parent Note so long as, in any case, remaining cumulative Excess Cash Flow since the Closing Date (after giving effect to any such repayment, reduction, forgiveness or termination any other transactions prepayments required to be consummated simultaneously therewithmade pursuant to Section 2.11(c), there is no net cash outflow any investments, loans or advances made pursuant to Holdings from Section 6.04(o)(iii), any previous Restricted Payments or payments made pursuant to this clause (c)(ii)); provided, however, that, on the date of any such declaration or payment utilizing this clause (c), the Borrower or any other Loan Partyand its Subsidiaries shall be in pro forma compliance with Section 5.10.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (Orchard Supply Hardware Stores Corp)
Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party Neither Alamosa Delaware nor the Borrower will, nor will it they permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) Holdings Alamosa Delaware may declare and pay dividends with respect to its common or preferred capital stock payable solely in additional shares of its common or preferred stock, (ii) any Subsidiary may make Restricted Payments to Subsidiaries (other than the Borrower) may declare and pay dividends ratably with respect to their Capital Stock; provided, that no distribution referred to in this clause (ii) shall be permitted to be made by any Special Purpose Subsidiary that unless such distribution is a Loan Party may make Restricted Payments to any other Subsidiary that is a Loan Party, in cash or in shares of its common Capital Stock pledged under the Pledge Agreement and any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiaryno Default or Event of Default shall have occurred and be continuing or would result therefrom, (iii) Alamosa Delaware may make Restricted Payments, not exceeding $1,000,000 during any fiscal year pursuant to and in accordance with stock option plans or other benefit plans for directors, management or employees of Alamosa Delaware and its Restricted Subsidiaries, (iv) at a time, in the case of both (x) and (y) below, when there does not exist a Default (or such distribution would not cause a Default), the Borrower may make distributions to Holdings Alamosa Delaware for payment of reasonable out-the sole purpose of-pocket operating and administrative costs and expenses payable by Holdings, the Manager or the Borrower, as the case may be, and incurred primarily in connection with the business of the Borrower, so long as no Default shall have occurred and is continuing or would occur as a result thereof, (iv) the Borrower may make distributions to Holdings in an amount necessary sufficient to enable Holdings to pay fund, the payment of (x) principal at scheduled maturity and (y) interest when duedue as scheduled, its actual federal, state and local income Taxes directly attributable to (or arising as a result of) the operations in each case in respect of the Borrower127/8% Senior Discount Notes and the 12 1/2% Senior Notes; provided, in the Manager case of both (x) and their Subsidiaries (y), that are such payment is due or to become due within 30 days from the date of such distribution and payable by Holdings as the parent of a consolidated groupcash distributed is in fact utilized to meet such payment obligation, (v) [intentionally omitted]if no Default has occurred and is continuing, the Borrower may pay dividends to Alamosa Delaware and Alamosa Delaware may pay dividends, in each case at such times and in such amounts, not exceeding the lesser of (A) $1,000,000 and (B) $50,000,000 minus the amount of all other Permitted Equity Proceeds Uses at such time, during any fiscal year as shall be necessary to permit each of Alamosa Delaware, APCS and Superholdings to discharge its permitted liabilities, (vi) Potbelly Franchising may declare if no Default has occurred and pay cash dividends to Holdings to permit Holdings to invest such cash dividends in is continuing, Alamosa Delaware, the Borrower; provided that, in each such case, Holdings actually Borrower and promptly uses such dividends for such investments, (vii) each Loan Party may purchase, redeem or otherwise acquire its common or preferred Equity Interests with the proceeds received from the substantially concurrent issuance of new common or preferred Equity Interests or where the consideration is the cancellation of Indebtedness owed to any Loan Party, and (viii) Permitted J/Vs other Restricted Subsidiaries may make Restricted Payments in an aggregate amount not to exceed $50,000,000 minus the holders amount of their all other Permitted Equity Interests so long as Proceeds Uses at such time and (vii) Restricted Payments are may be made on a pro rata basis the Effective Date as necessary to all such holders in accordance with their respective Equity Interests in such Permitted J/V.consummate the Transactions.
(b) No Loan Party Neither Alamosa Delaware nor the Borrower will, nor will it they permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when not more than 30 days prior to the date on which such payments become due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(v) the exchange, in a registered public offering, for the 12 1/2% Senior Notes of senior notes of Alamosa Delaware in an equivalent principal amount having the same terms and conditions as the 12 1/2% Senior Notes;
(vi) payment of intercompany Indebtedness (A) among the Borrower and the Subsidiary Loan Parties, (B) by Alamosa Delaware to the Borrower or any Subsidiary Loan Party and (C) if no Default or Event of Default has occurred and is continuing, by the Borrower or any Subsidiary Loan Party to Alamosa Delaware; and
(vvii) repayments on, reductions of, forgiveness payment of or Indebtedness under any Hedging Agreements permitted under Section 6.07 in connection with the termination (including early termination) of such Hedging Agreements in the Parent Note so long as, in any case, after giving effect to any such repayment, reduction, forgiveness or termination any other transactions to be consummated simultaneously therewith, there is no net cash outflow to Holdings from the Borrower or any other Loan Partyordinary course of business.
Appears in 1 contract