Restricted Payments; Restrictive Agreements. (a) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) any Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, and (ii) the U.S. Borrower may make Restricted Payments to Holdings (x) in an amount not to exceed $1,000,000 in any fiscal year, to the extent necessary to pay actual out-of-pocket general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay Tax liabilities directly attributable to (or arising as a result of) the U.S. Borrower and the Subsidiaries, so long as such Restricted Payments will be used by Holdings for such purposes within 10 Business Days of the receipt thereof or returned to the U.S. Borrower. (b) Notwithstanding paragraph (a), Holdings may make Restricted Payments in respect of the Common Stock, and the Borrowers may make Restricted Payments to Holdings to fund such Restricted Payments by Holdings, in an aggregate amount not to exceed the sum of (i) $300,000,000 and (ii) the Available Restricted Payment Amount; provided, however, that at the time thereof and after giving effect thereto, (x) no Default or Event of Default shall have occurred and be continuing and (y) Holdings would be in Pro Forma Compliance. (c) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of Holdings, the U.S. Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the U.S. Borrower or any other Subsidiary or to Guarantee Indebtedness of the U.S. Borrower or any other Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document or Senior Unsecured Note Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Subsidiary (other than a Borrower) by the terms of any Indebtedness of such Foreign Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) the foregoing shall not apply to restrictions and conditions existing on the Restatement Date and identified on Schedule 6.05(c), (F) the foregoing shall not apply to customary restrictions on or customary conditions to the payment of dividends or other distributions on, or the creation of Liens on, Equity Interests owned by the U.S. Borrower or any Subsidiary in any joint venture or similar enterprise contained in the constitutive documents, including shareholders’ or similar agreements, of such joint venture or enterprise, and (G) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, declare Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) any Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, and (ii) so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, the U.S. Borrower may (A) repurchase its Equity Interests owned by employees of the Borrower or the Subsidiaries or make Restricted Payments payments to Holdings (x) employees of the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed $1,000,000 5,000,000 in any fiscal yearyear or (B) repurchase, to redeem or otherwise refinance any Existing Preferred Stock that remains outstanding as of the extent necessary to pay actual out-of-pocket general corporate and overhead expenses incurred by Holdings Closing Date or (C) repurchase its common Equity Interests in the ordinary course of business and (y) in an amount necessary to pay Tax liabilities directly attributable to (open market or arising as a result of) the U.S. Borrower and the Subsidiaries, so long as such Restricted Payments will be used by Holdings for such purposes within 10 Business Days of the receipt thereof or returned to the U.S. Borrower.
(b) Notwithstanding paragraph (a), Holdings may make Restricted Payments in respect of the Common Stock, and the Borrowers may make Restricted Payments to Holdings to fund such Restricted Payments by Holdings, otherwise in an aggregate amount not to exceed the sum of (ix) $300,000,000 10,000,000 and (iiy) the Available Restricted Payment Amount; provided, however, that at CNI Growth Amount as in effect immediately prior to the time thereof and after giving effect thereto, of the making of such Restricted Payment; (xiii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may pay regularly scheduled cash dividends on any Preferred Equity Interests issued after the Closing Date to the extent the incurrence thereof is permitted pursuant to Section 6.01, and (yiv) Holdings so long as no Default or Event of Default shall have occurred and be continuing or would be result therefrom, the Borrower may make other Restricted Payments under this clause (iv) in Pro Forma Compliancean amount not to exceed $5,000,000 in any fiscal year.
(cb) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, enter Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of Holdings, the U.S. Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the U.S. Borrower or any other Subsidiary or to Guarantee Indebtedness of the U.S. Borrower or any other Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document (or Senior Unsecured Note Documentany First Lien Facility Documents), (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Subsidiary (other than a Borrower) by the terms of any Indebtedness of such Foreign Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) the foregoing shall not apply to restrictions and conditions existing on the Restatement Date and identified on Schedule 6.05(c), (F) the foregoing shall not apply to customary restrictions on or customary conditions to the payment of dividends or other distributions on, or the creation of Liens on, Equity Interests owned by the U.S. Borrower or any Subsidiary in any joint venture or similar enterprise contained in the constitutive documents, including shareholders’ or similar agreements, of such joint venture or enterprise, Indebtedness and (GD) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Holdings and the Borrowers will not, nor will they cause Declare or permit any of the Subsidiaries to, declare or make, or agree to declare or makepay, directly or indirectly, any Restricted Payment (including pursuant to any Synthetic Purchase Agreement)Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that except that:
(i) any each Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, and (ii) the U.S. Borrower may make Restricted Payments to Holdings Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(xii) in an amount not to exceed $1,000,000 in any fiscal year, to the extent necessary to pay actual out-of-pocket general corporate Borrower and overhead expenses incurred by Holdings each Subsidiary may declare and make dividend payments or other distributions payable in the ordinary course form of business and Equity Interests of such Person;
(yiii) in an amount necessary to pay Tax liabilities directly attributable to (or arising as a result of) the U.S. Borrower and the Subsidiaries, so long as no Default exists or would result therefrom, the Borrower may repurchase shares of its capital stock owned by employees or make payments to employees in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives upon termination of employment or in connection with the death or disability of such Restricted Payments will be used by Holdings for such purposes within 10 Business Days of the receipt thereof or returned to the U.S. Borrower.
(b) Notwithstanding paragraph (a), Holdings may make Restricted Payments in respect of the Common Stock, and the Borrowers may make Restricted Payments to Holdings to fund such Restricted Payments by Holdingsemployees, in an aggregate amount not to exceed $5,000,000 in any fiscal year;
(iv) so long as no Default exists or would result therefrom, the sum Borrower may repurchase shares of its capital stock for contribution to employee benefit plans maintained by the Borrower and the Subsidiaries, in an aggregate amount not to exceed $10,000,000 in any fiscal year;
(iv) $300,000,000 so long as no Default exists or would result therefrom and to the extent otherwise permitted by Section 8.04, any non-wholly owned Subsidiary may acquire its own Equity Interests from its minority owner(s); and
(iivi) the Available Borrower and its Subsidiaries may make other Restricted Payment Amount; provided, however, that at the time thereof and after giving effect thereto, Payments so long as (xA) no Default exists or Event of Default shall have occurred and be continuing would result therefrom, and (yB) Holdings the Borrower is and would be in compliance with the maximum Consolidated Leverage Ratio covenant set forth in Section 8.11 on a Pro Forma ComplianceBasis. Notwithstanding the foregoing, this Section 8.06 shall not prohibit, restrict or impose any condition upon the ability of any Subsidiary to make Restricted Payments as permitted in the Existing Credit Agreement.
(cb) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries toExcept as provided on Schedule 8.06, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of Holdings, the U.S. Borrower or any Subsidiary Loan Party to create, incur or permit to exist any Lien upon any of its property or assetsassets to secure the Obligations or any Indebtedness refinancing the Obligations, or (ii) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests make Restricted Payments or to make or repay loans or advances to any Loan Party or (iii) the U.S. Borrower or ability of any other Subsidiary or Loan Party to Guarantee Indebtedness of the U.S. Borrower or any other SubsidiaryLoan Party; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law Law or by any Loan Document or Senior Unsecured Note Documentby the Existing Credit Agreement, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of assets or a Subsidiary pending such sale, provided such restrictions and conditions apply only to the assets or Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to the restrictions and conditions imposed on Finsub under the Receivables Program Documentation, (D) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Subsidiary (other than a Borrower) by the terms of any Indebtedness of such Foreign Subsidiary permitted to be incurred hereunder, and (DE) clause subclause (i) of the foregoing shall not apply to (1) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, Indebtedness or (E2) the foregoing shall not apply to restrictions and conditions existing on the Restatement Date and identified on Schedule 6.05(c), (F) the foregoing shall not apply to customary restrictions on or customary conditions to the payment of dividends or other distributions on, or the creation of Liens on, Equity Interests owned by the U.S. Borrower or any Subsidiary in any joint venture or similar enterprise contained in the constitutive documents, including shareholders’ or similar agreements, of such joint venture or enterprise, and (G) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof.
Appears in 1 contract
Sources: Loan Agreement (Flowserve Corp)
Restricted Payments; Restrictive Agreements. (a) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, declare Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment (including pursuant to any Synthetic Purchase Agreement)Payment, or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) any Subsidiary may declare and pay dividends or make other distributions distributions, including in the form of additional Equity Interests, ratably to its equity holders, and (ii) the U.S. Borrower may make Restricted Payments to Holdings (x) in an amount not to exceed $1,000,000 in any fiscal year, to the extent necessary to pay actual out-of-pocket general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay Tax liabilities directly attributable to (or arising as a result of) the U.S. Borrower and the Subsidiaries, so long as such Restricted Payments will be used by Holdings for such purposes within 10 Business Days no Event of the receipt thereof or returned to the U.S. Borrower.
(b) Notwithstanding paragraph (a), Holdings may make Restricted Payments in respect of the Common Stock, and the Borrowers may make Restricted Payments to Holdings to fund such Restricted Payments by Holdings, in an aggregate amount not to exceed the sum of (i) $300,000,000 and (ii) the Available Restricted Payment Amount; provided, however, that at the time thereof and after giving effect thereto, (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) following each prepayment of Term Loans from Excess Cash Flow pursuant to Section 2.13(d) the Term Borrower may, at any time during the remainder of the calendar year during which such prepayment occurred, pay dividends on its common stock in an aggregate amount not exceeding 25% of the amount of such Excess Cash Flow that was not subject to the prepayment requirement, and (yB) Holdings would any Restricted Party may repurchase its Equity Interests owned by its employees or make payments to its employees upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees or make customary and reasonable salary and bonus and other benefits payments to its officers, employees and consultants or payments of customary fees and expenses of members of its board of directors in an aggregate amount for this clause (B) not to exceed $3,000,000 in any fiscal year (it being agreed that any such amount not utilized in any fiscal year may be carried forward and utilized in Pro Forma Complianceany subsequent fiscal year so long as the aggregate amount of such repurchases or payments pursuant to this clause (B) shall not exceed $6,000,000 in any fiscal year).
(cb) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, enter Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of Holdings, the U.S. Borrower or any Subsidiary Restricted Party to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Subsidiary Restricted Party to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the U.S. Borrower or any other Subsidiary Transaction Party or to Guarantee Indebtedness of the U.S. Borrower or any other SubsidiaryTransaction Party; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document or Senior Unsecured Note Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary assets pending such sale, provided such restrictions and conditions apply only to the Subsidiary assets that is are to be sold and such sale is permitted not prohibited hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Subsidiary (other than a Borrower) by the terms of any Indebtedness of such Foreign Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (ED) clause (i) of the foregoing shall not apply to restrictions and or conditions existing imposed by the Subordinated Note Documents as in effect on the Restatement Date and identified on Schedule 6.05(c), (F) the foregoing shall not apply to customary restrictions on or customary conditions to the payment of dividends or other distributions on, or the creation of Liens on, Equity Interests owned by the U.S. Borrower or any Subsidiary in any joint venture or similar enterprise contained in the constitutive documents, including shareholders’ or similar agreements, of such joint venture or enterprisedate hereof, and (GE) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) any Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, and (ii) the U.S. Borrower may make Restricted Payments to Holdings (x) in an amount not to exceed $1,000,000 in any fiscal year, to the extent necessary to pay actual out-of-pocket general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay Tax liabilities directly attributable to (or arising as a result of) the U.S. Borrower and the Subsidiaries, so long as such Restricted Payments will be used by Holdings for such purposes within 10 Business Days of the receipt thereof or returned to the U.S. Borrower.
(b) Notwithstanding paragraph (a), Holdings may make Restricted Payments in respect of the Common Stock, and the Borrowers may make Restricted Payments to Holdings to fund such Restricted Payments by Holdings, in an aggregate amount not to exceed the sum of (i) $300,000,000 and (ii) the Available Restricted Payment Amount; provided, however, that at the time thereof and after giving effect thereto, (x) no Default or Event of Default shall have occurred and be continuing and (y) Holdings the U.S. Borrower would be in Pro Forma Compliance.
(c) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of Holdings, the U.S. Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the U.S. Borrower or any other Subsidiary or to Guarantee Indebtedness of the U.S. Borrower or any other Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document or Senior Unsecured Note Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Subsidiary (other than a Borrower) by the terms of any Indebtedness of such Foreign Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) the foregoing shall not apply to restrictions and conditions existing on the Restatement Closing Date and identified on Schedule 6.05(c), (F) the foregoing shall not apply to customary restrictions on or customary conditions to the payment of dividends or other distributions on, or the creation of Liens on, Equity Interests owned by the U.S. Borrower or any Subsidiary in any joint venture or similar enterprise contained in the constitutive documents, including shareholders’ or similar agreements, of such joint venture or enterprise, and (G) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, declare Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that that:
(i) any Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, and ;
(ii) the U.S. Borrower may make Restricted Payments to Holdings (x) in an amount not to exceed $1,000,000 in any fiscal year, to the extent necessary to pay actual out-of-pocket general corporate and overhead expenses incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay Tax liabilities directly attributable to (or arising as a result of) the U.S. Borrower and the Subsidiaries, so long as such Restricted Payments will no Event of Default or Default shall have occurred and be used continuing or would result therefrom, the Parent may repurchase its Equity Interests owned by Holdings for such purposes within 10 Business Days employees of the receipt thereof Parent or returned the Subsidiaries or make payments to the U.S. Borrower.
(b) Notwithstanding paragraph (a), Holdings may make Restricted Payments in respect employees of the Common StockParent or the Subsidiaries in connection with the exercise of stock options, and stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the Borrowers may make Restricted Payments to Holdings to fund death or disability of such Restricted Payments by Holdings, employees in an aggregate amount not to exceed the sum of $2,500,000 in any fiscal year; provided that such amount shall be increased by (i) $300,000,000 and (iiA) the Available Restricted Payment Amountunused amount for the immediately preceding fiscal year less (B) the unused amount carried forward to such preceding fiscal year;
(iii) [reserved]; provided, however, that at the time thereof and after giving effect thereto, and
(xiv) so long as no Default or Event of Default shall have occurred and be continuing and (y) Holdings or would be result therefrom, the Parent or any Subsidiary may make additional Restricted Payments in Pro Forma Compliancean aggregate amount that does not exceed $5,000,000.
(cb) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, enter Enter into, incur or permit to exist after the Closing Date any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of Holdings, the U.S. Borrower or any Subsidiary Loan Party to create, incur or permit to exist any Lien upon any of its property or assets, assets to secure the Obligations or (ii) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the U.S. Borrower Parent or any other Subsidiary or the ability of any Subsidiary Guarantor to Guarantee Indebtedness of the U.S. Borrower or any other SubsidiaryObligations; provided that that
(A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document or Senior Unsecured Note Document, ;
(B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary or any assets of the Parent or any Subsidiary pending such sale, ; provided such restrictions and conditions apply only to the Subsidiary or assets that is are to be sold and such sale is permitted hereunder, ;
(C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Subsidiary (other than a Borrower) by the terms of any Indebtedness of such Foreign Subsidiary permitted to be incurred hereunder, ;
(D) restrictions imposed by any Governmental Authority;
(E) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) the foregoing shall not apply to restrictions and conditions existing on the Restatement Date and identified on Schedule 6.05(c), ;
(F) the foregoing shall not apply to customary restrictions on or customary conditions to the payment of dividends or other distributions on, or the creation of Liens on, Equity Interests owned by the U.S. Borrower or any Subsidiary in any joint venture or similar enterprise contained in the constitutive documents, including shareholders’ or similar agreements, of such joint venture or enterprise, and (G) clause (i) of the foregoing shall not apply to customary provisions in leases, licenses, sub-leases and sub-licenses and other contracts restricting the assignment thereof;
(G) the foregoing shall not apply to restrictions and conditions contained in the Revolving Facility Credit Agreement or the other Revolving Facility Loan Documents; provided that such restrictions and conditions are no more onerous than those set forth in the Revolving Facility Loan Documents in effect on the Closing Date;
(H) the foregoing shall not apply to restrictions and conditions contained in the Indenture; provided that such restrictions and conditions are no more onerous than those set forth in the Indenture in effect on the Closing Date;
(I) the foregoing shall not apply to any other contractual restrictions or conditions in effect on the Closing Date and set forth on Schedule 6.06(b);
(J) the foregoing shall not apply to any agreement or other instrument of a person acquired by the Borrowers or any Subsidiary which was in existence at the time of such acquisition (but not created in contemplation thereof or in connection therewith), which restriction or condition is not applicable to any person or the properties or assets of any person, other than the person and its Subsidiaries, or the property or assets of the person and its Subsidiaries, so acquired or after-acquired property as a result of restrictions or conditions existing at the time of such acquisition;
(K) the foregoing shall not apply to customary provisions in joint venture agreements, shareholder agreements and similar agreements applicable to joint ventures and other non-wholly owned entities; and
(L) the foregoing shall not apply to any restrictions or conditions imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or other obligations referred to in clauses (A) through (K) above, provided that the restrictions and conditions described by the foregoing clauses (i) and (ii) contained in such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in good faith judgment of the Parent no more restrictive than those restrictions and conditions in effect immediately prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing under the applicable contract, instrument or other obligation. provided, further, that the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Equity Interests shall not be deemed a restriction on the ability to make distributions on Equity Interests.
Appears in 1 contract
Restricted Payments; Restrictive Agreements. (a) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, declare Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) Restricted Payments made in connection with, and to consummate, the Combination shall be permitted, (ii) any Subsidiary may declare and pay dividends or make other distributions ratably to its equity holdersholders of a given class, (iii) so long as no Event of Default or Default shall have occurred and (ii) be continuing or would result therefrom, the U.S. Borrower or any Canadian Subsidiary may repurchase its Equity Interests owned by employees of the U.S. Borrower or the Subsidiaries or make Restricted Payments payments to Holdings (x) employees of the U.S. Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed $1,000,000 U.S.$1,000,000 in any fiscal year, to the extent necessary to pay actual out-of-pocket general corporate and overhead expenses incurred by Holdings in the ordinary course of business year and (yiv) in an amount necessary to pay Tax liabilities directly attributable to (so long as no Event of Default or arising as a Default shall have occurred and be continuing or result of) therefrom, the U.S. Borrower and and, with respect to the SubsidiariesExchangeable Shares, so long as such Restricted Payments will be used PTI Holdco (with funds advanced by Holdings for such purposes within 10 Business Days of the receipt thereof or returned to the U.S. Borrower.
(b) Notwithstanding paragraph (a), Holdings may make Restricted Payments in respect of the Common Stock, and the Borrowers may make Restricted Payments to Holdings to fund such Restricted Payments by Holdings, any fiscal year in an aggregate amount not to exceed the sum excess of (i) $300,000,000 and (ii) the Available Restricted Payment Amount; provided, however, that at the time thereof and after giving effect thereto, (x) no Default or Event the lesser of Default shall have occurred (A) U.S.$7,500,000 and be continuing and (B) 50% of Consolidated Net Income for the prior year over (y) Holdings would be the aggregate amount expended in Pro Forma Compliancesuch fiscal year to prepay, purchase or otherwise retire or acquire for value Subordinated Indebtedness prior to the stated maturity thereof.
(cb) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, enter Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of Holdings, the U.S. either Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets in favor of a Collateral Agent or any successor thereto hereunder or under any agreement that replaces or refinances this Agreement, or (ii) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the U.S. either Borrower or any other Subsidiary or to Guarantee Indebtedness of the U.S. either Borrower or any other Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document or Senior Unsecured Note Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Subsidiary (other than a Borrowerthe Canadian Borrower or any Canadian Subsidiary) by the terms of any Indebtedness of such Foreign Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) the foregoing shall not apply to restrictions and conditions existing on the Restatement Date and identified on Schedule 6.05(c), (F) the foregoing shall not apply to customary restrictions on or customary conditions to the payment of dividends or other distributions on, or the creation of Liens on, Equity Interests owned by the U.S. Borrower or any Subsidiary in any joint venture or similar enterprise contained in the constitutive documents, including shareholders’ or similar agreements, of such joint venture or enterprise, and (G) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereofthereof and (F) clause (ii) of the foregoing (solely as it relates to dividends) shall not apply to the restrictions on PTI Holdco required by the terms of the Exchangeable Shares as in effect on the date hereof.
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Restricted Payments; Restrictive Agreements. (a) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, declare Declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, however, that (i) Restricted Payments made in connection with, and to consummate, the Combination shall be permitted, (ii) any Subsidiary may declare and pay dividends or make other distributions ratably to its equity holdersholders of a given class, (iii) so long as no Event of Default or Default shall have occurred and (ii) be continuing or would result therefrom, the U.S. Borrower may repurchase its Equity Interests owned by 88 82 employees of the U.S. Borrower or the Subsidiaries or make Restricted Payments payments to Holdings (x) employees of the U.S. Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount not to exceed $1,000,000 U.S.$1,000,000 in any fiscal year, to the extent necessary to pay actual out-of-pocket general corporate and overhead expenses incurred by Holdings in the ordinary course of business year and (yiv) in an amount necessary to pay Tax liabilities directly attributable to (so long as no Event of Default or arising as a Default shall have occurred and be continuing or result of) therefrom, the U.S. Borrower and and, with respect to the SubsidiariesExchangeable Shares, so long as such Restricted Payments will be used PTI Holdco (with funds advanced by Holdings for such purposes within 10 Business Days of the receipt thereof or returned to the U.S. Borrower.
(b) Notwithstanding paragraph (a), Holdings may make Restricted Payments in respect of the Common Stock, and the Borrowers may make Restricted Payments to Holdings to fund such Restricted Payments by Holdings, any fiscal year in an aggregate amount not to exceed the sum excess of (i) $300,000,000 and (ii) the Available Restricted Payment Amount; provided, however, that at the time thereof and after giving effect thereto, (x) no Default or Event the lesser of Default shall have occurred (A) U.S.$7,500,000 and be continuing and (B) 50% of Consolidated Net Income for the prior year over (y) Holdings would be the aggregate amount expended in Pro Forma Compliancesuch fiscal year to prepay, purchase or otherwise retire or acquire for value Subordinated Indebtedness prior to the stated maturity thereof.
(cb) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, enter Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of Holdings, the U.S. either Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assetsassets in favor of a Collateral Agent or any successor thereto hereunder or under any agreement that replaces or refinances this Agreement, or (ii) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the U.S. either Borrower or any other Subsidiary or to Guarantee Indebtedness of the U.S. either Borrower or any other Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document or Senior Unsecured Note Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Subsidiary (other than a Borrowerthe Canadian Borrower or any Canadian Subsidiary) by the terms of any Indebtedness of such Foreign Subsidiary permitted to be incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness, (E) the foregoing shall not apply to restrictions and conditions existing on the Restatement Date and identified on Schedule 6.05(c), (F) the foregoing shall not apply to customary restrictions on or customary conditions to the payment of dividends or other distributions on, or the creation of Liens on, Equity Interests owned by the U.S. Borrower or any Subsidiary in any joint venture or similar enterprise contained in the constitutive documents, including shareholders’ or similar agreements, of such joint venture or enterprise, and (G) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereofthereof and (F) clause (ii) of the foregoing (solely as it relates to dividends) shall not apply to the restrictions on PTI Holdco required by the terms of the Exchangeable Shares as in effect on the date hereof.
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